Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting. (b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event. (c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Vine Energy Inc.), Merger Agreement (Chesapeake Energy Corp), Merger Agreement (Chesapeake Energy Corp)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Company Governing Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) a meeting of its stockholders for the purpose of obtaining the Company Stockholders Meeting, Stockholder Approval to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is being declared effective by the SEC (and in any event will shall use reasonable best efforts to convene such meeting within forty-five (45) 60 days thereof). Except where a Company Change of Recommendation has been made in compliance with as permitted by Section 6.3, the Company Board shall recommend that the stockholders Company Stockholders vote in favor of the Company approve approval of the Merger and adopt this Agreement the other Transactions at the Company Stockholders Meeting and the Company Board shall solicit from the Company Stockholders proxies in favor of the approval of the Merger and the other Transactions, and the Proxy Statement shall include a statement to the effect that the Company Board has resolved to make the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If As reasonably requested by Parent, the Company shall use its commercially reasonable efforts to promptly provide Parent with all the requested voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders Company Stockholders with respect thereto. Notwithstanding anything to the contrary contained in this Agreement, the Company (a) shall be required to adjourn or postpone the Company Stockholders Meeting (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company Stockholders or (ii) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (b) may, and at the request of Parent shall, adjourn or postpone the Company Stockholders Meeting if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that unless otherwise agreed to by the parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than 30 days after the date for which the meeting was previously scheduled (it being understood that such Company Stockholders Meeting shall be adjourned or postponed every time the circumstances described in the foregoing clauses (a)(i) and (a)(ii) exist, and such Company Stockholders Meeting may be adjourned or postponed every time the circumstances described in the foregoing clause (b) exist); and provided, further, that the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two Business Days prior to the End Date. In the event of any postponement or adjournment in which there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum or obtain the Company Stockholder Approval, the Company shall use reasonable best efforts to ensure such a quorum and approval at the Company Stockholders Meeting following such postponement or adjournment. Unless there has been a Company Change of Recommendation made in accordance with as permitted by Section 6.36.3(d)(iii), the Parties agree to Company and Parent shall cooperate in responding, and shall use their reasonable best efforts to defend against respond, as promptly as reasonably practical, to any efforts public statement by any of the Company’s stockholders Company Stockholder or any other Person in opposition of the Transactions or otherwise intended to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix Once the Company has established a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as , unless required to do so by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid Law or become payable to the named executive officers of the Company Governing Documents or in connection with the Merger and matters a postponement or adjournment of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless as required or permitted hereunder. Unless this Agreement shall have has been terminated pursuant to in accordance with Article VIIIVIII hereof, the Company agrees that its Company’s obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to in accordance with this Section 6.5 shall not be limited or otherwise affected by the making making, commencement, disclosure, announcement or submission of a any Company Superior Proposal or Company Competing Proposal, or by any Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosureRecommendation, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or by the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Two Harbors Investment Corp.), Merger Agreement (Two Harbors Investment Corp.), Merger Agreement (UWM Holdings Corp)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents If approval of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve is required under DGCL in order to consummate the Merger:
(a) As promptly as practicable following the Appointment Time and adopt the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement at Agreement, if applicable, the Company Stockholders shall prepare and file as promptly as practicable with the SEC a proxy or information statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement shall include before it is filed with the SEC and the Company Board Recommendationshall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel with the intention that the Proxy Statement be in a form ready to print and mail to the stockholders of the Company as promptly as practicable following the Appointment Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable. The Company shall solicit from include in the Proxy Statement the recommendation of the Company Board of Directors that stockholders of the Company vote in favor of the adoption of this Agreement in accordance with the DGCL. The Company shall use its reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable law and, the Company further agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement as provided in Section 1.9(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Exchange Act or the SEC (or its staff).
(b) The Company, acting through the Company Board of Directors, shall, in accordance with and subject to the requirements of applicable law:
(i) (A) as promptly as practicable following the Appointment Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, duly set a record date for, call and give notice of a special meeting of its stockholders (the “Special Meeting”) for the purpose of considering and taking action upon this Agreement (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as practicable following the Appointment Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, convene and hold the Special Meeting;
(ii) cause the definitive Proxy Statement to be mailed to its stockholders; and
(iii) use its reasonable best efforts to (A) solicit from its stockholders proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval Agreement and submit the proposal to adopt this Agreement to the (B) secure any approval of stockholders of the Company at that is required by the Company Stockholders Meeting. The Company DGCL and any other applicable law to effect the Merger.
(c) At the Special Meeting or any postponement or adjournment thereof, Parent shall ensure that vote, or cause to be voted, all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduledShares then owned by it, there are insufficient shares of Company Common Stock represented (either in person Purchaser or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any their other Person to prevent the Company Stockholder Approval from being obtained. The Company, subsidiaries and affiliates in consultation with Parent, shall fix a record date for determining the stockholders favor of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid and to deliver or become payable to the named executive officers of the Company in connection with the Merger and matters of procedureprovide, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole a stockholder of Merger Sub Inc. in accordance with the Company, any other approvals that are required by the DGCL and any other applicable Law and law to effect the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementMerger.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Redback Networks Inc), Agreement and Plan of Merger (Ericsson Lm Telephone Co)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents If approval of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at is required under the DGCL in order to consummate the Merger:
(a) As promptly as practicable following the Appointment Time, the Company Stockholders shall prepare and file as promptly as practicable with the SEC a proxy for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement shall include before it is filed with the SEC and the Company Board Recommendationshall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel with the intention that the Proxy Statement be in a form ready to print and mail to the stockholders of the Company as promptly as practicable following the Appointment Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable. Parent and Purchaser shall promptly furnish to the Company in writing all information concerning Parent, Purchaser and the Offer that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Proxy Statement. The Company shall solicit from include in the Proxy Statement the recommendation of the Company Board of Directors that stockholders of the Company proxies vote in favor of the adoption of this Agreement, Agreement in accordance with the DGCL and the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ referred to in Section 1.2(b). The Company shall use its reasonable best efforts to obtain and furnish the Company Stockholder Approval and submit information required to be included by the proposal SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly to adopt this Agreement any comments made by the SEC with respect to the stockholders of the Company at the Company Stockholders MeetingProxy Statement. The Company shall ensure provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance or its counsel may receive from time to time from the SEC or its staff with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment respect to the Proxy Statement is provided promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to the Company’s stockholders or (B) if, as of unless it has first obtained the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent ifand Purchaser to such mailing, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without The Company, on the prior written consent of one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law, and the Company further agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement as provided in Section 1.9(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Exchange Act or the SEC (or its staff).
(b) The Company, acting through the Company Board of Directors, shall, in accordance with and subject to the requirements of applicable Law:
(i) (A) as promptly as practicable following the Appointment Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, duly set a record date for, call and give notice of a special meeting of its stockholders (the “Special Meeting”) for the purpose of considering and taking action upon this Agreement (with the record date and meeting date set in consultation with Purchaser); and (B) as promptly as practicable following the Appointment Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, convene and hold the Special Meeting;
(ii) cause the definitive Proxy Statement to be mailed to its stockholders; and
(iii) use its reasonable best efforts to: (A) solicit from its stockholders proxies in favor of the adoption of this Agreement; and (B) secure any approval of stockholders of the Company that is required by the DGCL and any other applicable Law to effect the Merger.
(c) At the Special Meeting or any postponement or adjournment thereof, Parent shall vote, or cause to be voted, all of the Shares then owned by it, Purchaser or any of their other subsidiaries and affiliates in favor of the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid and to deliver or become payable to the named executive officers of the Company in connection with the Merger and matters of procedureprovide, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole a stockholder of Merger Sub Inc. in accordance with the Company, any other approvals that are required by the DGCL and any other applicable Law and to effect the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementMerger.
Appears in 2 contracts
Sources: Merger Agreement (Teradyne, Inc), Merger Agreement (Nextest Systems Corp)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents If approval of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve is required under the DGCL in order to consummate the Merger:
(a) As promptly as practicable following the Appointment Time and adopt the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement at Agreement, if applicable, the Company Stockholders shall prepare and file as promptly as practicable with the SEC a proxy or information statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement shall include before it is filed with the SEC and the Company Board Recommendationshall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel with the intention that the Proxy Statement be in a form ready to print and mail to the stockholders of the Company as promptly as practicable following the Appointment Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable. The Company shall solicit from include in the Proxy Statement the recommendation of the Company Board of Directors that stockholders of the Company vote in favor of the adoption of this Agreement in accordance with the DGCL. The Company shall use its reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable law and, the Company further agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement as provided in Section 1.9(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Exchange Act or the SEC (or its staff).
(b) The Company, acting through the Company Board of Directors, shall, in accordance with and subject to the requirements of applicable law:
(i) (A) as promptly as practicable following the Appointment Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, duly set a record date for, call and give notice of a special meeting of its stockholders (the “Special Meeting”) for the purpose of considering, approving and adopting this Agreement (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as practicable following the Appointment Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, convene and hold the Special Meeting;
(ii) cause the definitive Proxy Statement to be mailed to its stockholders; and
(iii) use its reasonable best efforts to (A) solicit from its stockholders proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval Agreement and submit the proposal to adopt this Agreement to the (B) secure any approval of stockholders of the Company at that is required by the Company Stockholders Meeting. The Company DGCL and any other applicable Law to effect the Merger.
(c) At the Special Meeting or any postponement or adjournment thereof, Parent shall ensure that vote, or cause to be voted, all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduledShares then owned by it, there are insufficient shares of Company Common Stock represented (either in person Purchaser or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any their other Person to prevent the Company Stockholder Approval from being obtained. The Company, subsidiaries and affiliates in consultation with Parent, shall fix a record date for determining the stockholders favor of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid and to deliver or become payable to the named executive officers of the Company in connection with the Merger and matters of procedureprovide, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole a stockholder of Merger Sub Inc. in accordance with the Company, any other approvals that are required by the DGCL and any other applicable Law and law to effect the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementMerger.
Appears in 2 contracts
Sources: Merger Agreement (Altra Holdings, Inc.), Merger Agreement (Tb Woods Corp)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) a meeting of its stockholders for the purpose of obtaining the Company Stockholders MeetingStockholder Approval, to be held as promptly as reasonably practicable following the clearance of the Joint Proxy Statement by the SEC and the Merger Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof)SEC. Except where a Company Change of Recommendation has been made in compliance with as permitted by Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this AgreementAgreement and the Transactions, use its reasonable best efforts to obtain and the Joint Proxy Statement shall include the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable LawsBoard Recommendation. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Joint Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten fifteen (1015) Business Days after the date for which the meeting was previously scheduled except as (it being understood that such Company Stockholders Meeting shall be adjourned or postponed every time the circumstances described in the foregoing clauses (i)(A) and (i)(B) exist, and such Company Stockholders Meeting may be required by applicable Lawadjourned or postponed every time the circumstances described in the foregoing clause (ii) exist); (y) and provided further that the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two three (23) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the The Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix Once the Company has established a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), unless required to do so by applicable Law or its Organizational Documents or in connection with a postponement or adjournment permitted hereunder. Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Parent shall take all action necessary in accordance with applicable Laws and the Organizational Documents of Parent to duly give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Parent Stockholder Approval, to be held as promptly as reasonably practicable following the clearance of the Joint Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC. Except as permitted by Section 6.4(e), the Parent Board shall recommend that the stockholders of Parent approve the Parent Stock Issuance and the Parent Board shall solicit from stockholders of Parent proxies in favor of the Parent Stock Issuance, and the Joint Proxy Statement shall include the Parent Board Recommendation. Notwithstanding anything to the contrary contained in this Agreement, Parent (i) shall be required to adjourn or postpone the Parent Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Joint Proxy Statement is provided to the Parent’s stockholders or (B) if, as of the time for which the Parent Stockholders Meeting is scheduled, there are insufficient shares of Parent Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Parent Stockholders Meeting and (ii) may adjourn or postpone the Parent Stockholders Meeting if, as of the time for which the Parent Stockholders Meeting is scheduled, there are insufficient shares of Parent Common Stock represented (either in person or by proxy) to obtain the Parent Stockholder Approval; provided, however, that unless otherwise agreed to by the Parties, the Parent Stockholders Meeting shall not be adjourned or postponed to a date that is more than fifteen (15) Business Days after the date for which the meeting was previously scheduled (it being understood that such Parent Stockholders Meeting shall be adjourned or postponed every time the circumstances described in the foregoing clauses (i)(A) and (i)(B) exist, and such Parent Stockholders Meeting may be adjourned or postponed every time the circumstances described in the foregoing clause (ii) exist); and provided further that the Parent Stockholders Meeting shall not be adjourned or postponed to a date on or after three (3) Business Days prior to the Outside Date. If requested by the Company, Parent shall promptly provide the Company with all voting tabulation reports relating to the Parent Stockholders Meeting that have been prepared by Parent or Parent’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep the Company reasonably informed regarding the status of the solicitation and any material oral or written communications from or to Parent’s stockholders with respect thereto. Unless there has been a Parent Change of Recommendation in accordance with Section 6.4, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Parent’s stockholders or any other Person to prevent the Parent Stockholder Approval from being obtained. Once Parent has established a record date for the Parent Stockholders Meeting, Parent shall not change such record date or establish a different record date for the Parent Stockholders Meeting without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), unless required to do so by applicable Law or its Organizational Documents or in connection with a postponement or adjournment permitted hereunder.
(c) The Parties shall cooperate and use their reasonable best efforts to set the record dates for and hold the Company Stockholders Meeting and the Parent Stockholders Meeting, as applicable, on the same day and within two (2) Business Days after the Exchange Offer Expiration Date and at approximately the same time.
(d) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, each of the Company and Parent agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting and the Parent Stockholders Meeting, as applicable, pursuant to this Section 6.5 6.6 shall not be affected by the making of a Company Change of Recommendation or a Parent Change of Recommendation, as applicable, and its obligations pursuant to this Section 6.5 6.6 shall not be affected by the commencement, announcement, disclosure, or communication to the Company or Parent, as applicable, of any Company Competing Proposal or Parent Competing Proposal or other proposal (including, as applicablewith respect to the Company, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event or Parent Intervening Event. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, the Company shall not be required to convene the Company Stockholders Meeting after (x) the Company Chapter 11 Cases have commenced or (y) the Company stipulates to bankruptcy relief after the occurrence of an Involuntary Insolvency Event pursuant to Section 6.24(a)(v).
(ce) Immediately after the execution of this Agreement, Parent shall duly approve and adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so approving and adopting this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Transaction Support Agreement (Bonanza Creek Energy, Inc.)
Stockholders Meeting. (a) The Company, acting through the Company Board and/or the Special Committee, shall take all action necessary actions in accordance with applicable Laws law, the Company Charter Documents and the Organizational Documents rules of the Company The NASDAQ National Market to promptly and duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance Company Meeting for the purpose of considering and voting upon the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC Company Voting Proposal. Subject to Section 6.1, (and in any event will use reasonable best efforts to convene such meeting within forty-five (45i) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that approval of the Company Voting Proposal by the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and include such recommendation in the Proxy Statement shall include Statement, (ii) the Company Board Recommendation. The Company shall solicit from stockholders not withhold, withdraw or modify in a manner adverse to Parent, or publicly propose or resolve to withhold, withdraw or modify in a manner adverse to Parent, the recommendation of the Company Board that the Company’s stockholders vote in favor of the Company Voting Proposal, and (iii) the Company shall take all action that is both reasonable and lawful to solicit from its stockholders proxies in favor of the adoption Company Voting Proposal and shall take all other action reasonably necessary or advisable to secure the vote or consent of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at required by the Company Stockholders Meeting. rules of The Company shall ensure that all proxies solicited in connection with NASDAQ National Market or the Company Stockholders Meeting are solicited in compliance with any applicable LawsDGCL to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to Company, with the prior approval of Parent may adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) ifor, if as of the time for which the Company Stockholders Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent Meeting.
(which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating b) Prior to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status termination of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made this Agreement in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law8.1, (i) nothing contained in this Agreement shall limit in any way the adoption obligation of the Company to convene and hold the Company Meeting in accordance with Section 6.3(a) of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call submit to the vote of its stockholders any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) Acquisition Proposal other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected transactions contemplated by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Encore Medical Corp), Merger Agreement (Encore Medical, L.P.)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) a meeting of its stockholders for the purpose of obtaining the Company Stockholders MeetingStockholder Approval, to be held as promptly as reasonably practicable following the clearance of the Joint Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof)SEC. Except where a Company Change of Recommendation has been made in compliance with as permitted by Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this AgreementAgreement and the Transactions, use its reasonable best efforts to obtain and the Joint Proxy Statement shall include the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable LawsBoard Recommendation. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Joint Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten fifteen (1015) Business Days after the date for which the meeting was previously scheduled except as (it being understood that such Company Stockholders Meeting shall be adjourned or postponed every time the circumstances described in the foregoing clauses (i)(A) and (i)(B) exist, and such Company Stockholders Meeting may be required by applicable Lawadjourned or postponed every time the circumstances described in the foregoing clause (ii) exist); (y) and provided further that the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two three (23) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the The Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix Once the Company has established a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), unless required to do so by applicable Law or its Organizational Documents or in connection with a postponement or adjournment permitted hereunder. Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding nonbinding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Parent shall take all action necessary in accordance with applicable Laws and the Organizational Documents of Parent to duly give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Parent Stockholder Approval, to be held as promptly as reasonably practicable following the clearance of the Joint Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC. Except as permitted by Section 6.4(e), the Parent Board shall recommend that the stockholders of Parent approve the Parent Stock Issuance and the Parent Board shall solicit from stockholders of Parent proxies in favor of the Parent Stock Issuance, and the Joint Proxy Statement shall include the Parent Board Recommendation. Notwithstanding anything to the contrary contained in this Agreement, Parent (i) shall be required to adjourn or postpone the Parent Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Joint Proxy Statement is provided to the Parent’s stockholders or (B) if, as of the time for which the Parent Stockholders Meeting is scheduled, there are insufficient shares of Parent Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Parent Stockholders Meeting and (ii) may adjourn or postpone the Parent Stockholders Meeting if, as of the time for which the Parent Stockholders Meeting is scheduled, there are insufficient shares of Parent Common Stock represented (either in person or by proxy) to obtain the Parent Stockholder Approval; provided, however, that unless otherwise agreed to by the Parties, the Parent Stockholders Meeting shall not be adjourned or postponed to a date that is more than fifteen (15) Business Days after the date for which the meeting was previously scheduled (it being understood that such Parent Stockholders Meeting shall be adjourned or postponed every time the circumstances described in the foregoing clauses (i)(A) and (i)(B) exist, and such Parent Stockholders Meeting may be adjourned or postponed every time the circumstances described in the foregoing clause (ii) exist); and provided further that the Parent Stockholders Meeting shall not be adjourned or postponed to a date on or after three (3) Business Days prior to the Outside Date. If requested by the Company, Parent shall promptly provide the Company with all voting tabulation reports relating to the Parent Stockholders Meeting that have been prepared by Parent or Parent’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep the Company reasonably informed regarding the status of the solicitation and any material oral or written communications from or to Parent’s stockholders with respect thereto. Unless there has been a Parent Change of Recommendation in accordance with Section 6.4, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Parent’s stockholders or any other Person to prevent the Parent Stockholder Approval from being obtained. Once Parent has established a record date for the Parent Stockholders Meeting, Parent shall not change such record date or establish a different record date for the Parent Stockholders Meeting without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), unless required to do so by applicable Law or its Organizational Documents or in connection with a postponement or adjournment permitted hereunder.
(c) The Parties shall cooperate and use their reasonable best efforts to set the record dates for and hold the Company Stockholders Meeting and the Parent Stockholders Meeting, as applicable, on the same day and at approximately the same time.
(d) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, each of the Company and Parent agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting and the Parent Stockholders Meeting, as applicable, pursuant to this Section 6.5 6.6 shall not be affected by the making of a Company Change of Recommendation or a Parent Change of Recommendation, as applicable, and its obligations pursuant to this Section 6.5 6.6 shall not be affected by the commencement, announcement, disclosure, or communication to the Company or Parent, as applicable, of any Company Competing Proposal or Parent Competing Proposal or other proposal (including, as applicablewith respect to the Company, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event or Parent Intervening Event.
(ce) Immediately after the execution of this Agreement, Parent shall duly approve and adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so approving and adopting this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Merger Agreement (Extraction Oil & Gas, Inc.)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of If the adoption of this Agreement---------------------- Agreement by the Company's stockholders is required by Law, the Company shall, at Parent's request, as soon as practicable following the expiration of the Offer, prepare and file with the SEC the Proxy Statement in preliminary form, and each of the Company and Parent shall use its reasonable best efforts to obtain respond as promptly as practicable to any comments of the SEC or its staff with respect thereto. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. If at any time prior to receipt of the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company there shall ensure occur any event that all proxies solicited should be set forth in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn an amendment or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by ParentStatement, the Company shall promptly provide Parent with all voting tabulation reports relating prepare and mail to the its stockholders such an amendment or supplement. The Company Stockholders Meeting that have been prepared by the Company shall not mail any Proxy Statement, or the Company’s transfer agentany amendment or supplement thereto, proxy solicitor or other Representative, and shall otherwise keep to which Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect theretoobjects, unless such mailing is required by Law. Unless there has been a The Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and shall use their its reasonable best efforts to defend against any efforts by any of cause the Proxy Statement to be mailed to the Company’s 's stockholders or any other Person to prevent as promptly as practicable after filing with the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent SEC.
(which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (ib) If the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the Company's stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action is required by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIIILaw, the Company agrees that its obligations to shall, at Parent's request, as soon as practicable following the expiration of the Offer and the purchase of Shares pursuant thereto, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders' Meeting") for the purpose of seeking ----------------------------- the Company Stockholders Meeting pursuant Stockholder Approval. The Company shall, through the Board of Directors of the Company, give the recommendation referred to this in Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event2.02.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Gec Acquisition Corp), Merger Agreement (Gec Acquisition Corp)
Stockholders Meeting. (a) The Company, acting through the Company Board, shall take all action necessary actions in accordance with applicable Laws law, its Certificate of Incorporation and the Organizational Documents of the Company By-laws to promptly and duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (practicable, and in any event will use reasonable best efforts within 45 days after the declaration of effectiveness of the Registration Statement, the Company Stockholders Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to convene such meeting within forty-five Section 6.1(b), to the fullest extent permitted by applicable law, (45i) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that approval and adoption of the Company Voting Proposal by the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and include such recommendation in the Proxy Statement shall include Statement/Prospectus, and (ii) neither the Company Board Recommendation. The Company nor any committee thereof shall solicit from stockholders withdraw or modify, or propose or resolve to withdraw or modify in a manner adverse to the Parent, the recommendation of the Company Board that the Company’s stockholders vote in favor of the Company Voting Proposal. Subject to the Company Board’s duty of disclosure, the Company shall use best efforts to solicit from its stockholders proxies in favor of the adoption Company Voting Proposal and shall take all other action necessary or advisable to secure the vote or consent of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at required by the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with rules of the Company Stockholders Meeting are solicited in compliance with any applicable LawsDGCL to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to Company, after consultation with the Parent, may adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement Statement/Prospectus is provided to the Company’s stockholders or (B) ifor, if as of the time for which the Company Stockholders Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement/Prospectus) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement The Company shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to in accordance with this Section 6.5 and shall submit the Company Voting Proposal to its stockholders for the purpose of acting upon such proposal whether or not be affected (i) the Company Board at any time subsequent to the date hereof determines, in the manner permitted by Section 6.1(b) that the making Company Voting Proposal is no longer advisable or recommends that the stockholders of a the Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosurereject such proposal, or communication (ii) any actual, potential or purported Acquisition Proposal or Superior Proposal has been commenced, disclosed, announced or submitted to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening EventCompany.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Icoria, Inc.), Merger Agreement (Clinical Data Inc)
Stockholders Meeting. (a) The If, after the Acceptance Time, approval of the Stockholders is required under applicable Law to consummate the Merger, the Company shall take all action necessary shall, in accordance with and to the extent permitted by applicable Laws and Law:
(i) as soon as practicable following the Organizational Documents of the Company to Acceptance Time, establish a record date for, duly call, give notice of, convene and hold a special meeting of the Stockholders (in person or virtually, in accordance with applicable Law) the Company “Stockholders Meeting, to be held ”) for the purpose of considering and taking action upon this Agreement and approving the Merger;
(ii) as promptly soon as reasonably practicable following the clearance of the Proxy Statement by Acceptance Time, prepare and file with the SEC a preliminary proxy statement relating to the Merger and this Agreement (the Registration Statement is declared effective by the SEC (“Proxy Statement”) and in any event will use reasonable best efforts to convene obtain and furnish the information required by the SEC to be included in such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been Proxy Statement and, after consultation with Parent, respond promptly to any comments made by the SEC to be included in such Proxy Statement and, subject to compliance with Federal Securities Laws, cause a notice of a special meeting and a definitive Proxy Statement to be mailed to the Stockholders at the earliest practicable time following the Acceptance Time;
(iii) subject to Section 6.35.2, include in the Proxy Statement the Company Board shall recommend Recommendation that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies vote in favor of the approval and adoption of this AgreementAgreement and the Merger; and
(iv) subject to Section 5.2, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders necessary approvals of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on this Agreement by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders MeetingStockholders.
(b) Without limiting The Company shall cause the generality of Proxy Statement to comply in all material respects with the foregoing, unless this Agreement Federal Securities Laws. The Company shall have been terminated pursuant consult with Parent and Merger Sub with respect to Article VIII, the Company agrees that Proxy Statement (and any amendments or supplements thereto) and shall afford Parent and Merger Sub reasonable opportunity to review and comment thereon prior to its obligations to call, give notice of, convene filing. Parent and hold the Company Stockholders Meeting pursuant to this Section 6.5 Merger Sub shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication promptly furnish to the Company of any and all information relating to Parent and Merger Sub required to be included in the Proxy Statement, including any information required under the Exchange Act and the rules and regulations promulgated thereunder. The Company Competing Proposal shall provide Parent and its counsel in writing with any comments or other proposal communications that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement (including, as applicable, a Company Superior Proposaland any amendments or supplements thereto) promptly after receipt of such comments or the occurrence or disclosure of any Company Intervening Eventother communications.
(c) Immediately after Parent and Merger Sub shall (i) promptly correct any information provided by it for use in the execution Proxy Statement if and to the extent that such information shall become false or misleading in any material respect and (ii) promptly notify the Company in writing, prior to the Closing, of the occurrence of any event which should be set forth in an amendment or supplement to the Proxy Statement. The Company shall promptly notify Parent and Merger Sub in writing of the occurrence of any event relating to the Company or the transactions contemplated by this Agreement which should be set forth in an amendment or a supplement to the Proxy Statement. In the case of an amendment or supplement to the Proxy Statement being appropriate, the Company, with the cooperation of Parent and Merger Sub, will promptly prepare and mail such amendment or supplement and the Company shall consult with Parent and Merger Sub with respect to such amendment or supplement and shall afford Parent and Merger Sub reasonable opportunity to review and comment thereon prior to such mailing. The Company agrees to notify Parent and Merger Sub at least three (3) days prior to the mailing of the Proxy Statement (or any amendment or supplement thereto) to the Stockholders.
(d) Parent and Merger Sub each agree that at the Stockholders Meeting they will vote, or cause to be voted, all of the Shares then beneficially owned by them in favor of the approval of the Merger and the adoption of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Amylin Pharmaceuticals Inc), Merger Agreement (Bristol Myers Squibb Co)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (in person including any adjournment or virtually, in accordance with applicable Lawpostponement thereof) (the Company Stockholders “Stockholders’ Meeting, to be held ”) as promptly as reasonably practicable following after the clearance of the Proxy Statement by the SEC and date the Registration Statement is declared effective by under the SEC Securities Act (and except as provided in any event will use reasonable best efforts this Section 7.03) for the purpose of voting on the Company Proposals. In connection with the Stockholders’ Meeting, subject to convene such meeting within forty-five (45) days thereofSection 7.02(b). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of Company, acting through the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement Board, shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of (i) recommend the adoption of this AgreementAgreement and approval of the other Company Proposals by the Company’s stockholders in the Joint Proxy Statement/Prospectus, (ii) otherwise comply with all legal and Nasdaq requirements applicable to such meeting, (iii) regardless of whether or not there has been a Company Adverse Recommendation Change, use its reasonable best efforts to obtain solicit from its stockholders proxies in favor of (it being understood that a proxy card will be deemed voted “in favor of” a matter to be acted upon by the Company’s stockholders if it provides the stockholder with the ability to either vote for, vote against or abstain from voting on, such matter) the adoption of this Agreement and approval of the other Company Proposals and (iv) subject to the parenthetical in the immediately preceding clause (iii), take all other actions reasonably necessary or advisable to secure the adoption of this Agreement and approval of the other Company Proposals by the Company’s stockholders in order to satisfy the requirement of applicable Law and the rules and regulations of Nasdaq, including, without limitation, timely setting a record date, provided that nothing in this Section 7.03 shall prohibit the Company Stockholder Approval and submit the proposal to adopt Board or any committee thereof from making a Company Adverse Recommendation Change in compliance with this Agreement to the stockholders of the Company at the Company Stockholders MeetingAgreement. The Company shall ensure that all proxies solicited in connection keep the Investors reasonably updated with respect to proxy solicitation results as reasonably requested by the Investors, and shall direct its proxy soliciting agent to provide the Investors and their Representatives with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything results of all proxy tabulations provided by such proxy soliciting agent to the contrary contained in this AgreementCompany. The Company, acting through the Company Board, shall not, without the prior written consent of the Investors, adjourn or postpone the Stockholders’ Meeting; provided, however, the Company (i) shall be required have the right to adjourn or postpone the Company Stockholders Meeting Stockholders’ Meeting: (A1) after consultation with the Investors, for not more than two (2) periods not to exceed ten (10) Business Days each if on the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for date on which the Company Stockholders Stockholders’ Meeting is then scheduled, the Company has not received proxies representing a sufficient number of shares of Company Common Stock to obtain the Stockholder Approval; (2) if on the date on which the Stockholders’ Meeting is then scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and of the Stockholders’ Meeting; or (ii3) may after consultation with the Investors, if the failure to adjourn or postpone the Company Stockholders Stockholders’ Meeting with would reasonably be expected to be a violation of applicable Law for the written consent distribution of Parent if, as of any required amendment or supplement to the time for which Joint Proxy Statement/Prospectus to be timely provided to the Company Stockholders Meeting is scheduled, there are insufficient shares holders of Company Common Stock represented (either in person or by proxy) to obtain Stock. Once the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix established a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Stockholders’ Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Stockholders’ Meeting without the prior written consent of Parent the Investors (which consent shall not to be unreasonably withheld, conditioned delayed or delayedconditioned), unless required to do so by applicable Law or the Company’s organizational documents. Without the prior written consent of Parent or as required by applicable Lawthe Investors, (i) the adoption of this Agreement and approval of the other Company Proposals shall be the only matter matters (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposala motion to adjourn in accordance with the terms of this Agreement, and matters required by applicable Law to be voted on by the Company’s stockholders in connection with the adoption of this Agreement and approval of the other Company Proposals) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Stockholders’ Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 2 contracts
Sources: Investment and Transaction Agreement (Id Systems Inc), Investment and Transaction Agreement (Pointer Telocation LTD)
Stockholders Meeting. If approval of the stockholders of the Company is required under the DGCL in order to consummate the Merger:
(a) As promptly as practicable following the Appointment Time, the Company shall prepare and file with the SEC a proxy for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. Subject to Section 5.2, the Company shall include in the Proxy Statement the recommendation of the Company Board of Directors that the stockholders of the Company vote in favor of the adoption of this Agreement in accordance with the DGCL. The Company shall use its reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Laws, and the Company further agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement as provided in Section 1.9(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Exchange Act or the SEC (or its staff).
(b) The Company, acting through the Company Board of Directors, shall, in accordance with and subject to the requirements of applicable Law and this Agreement (including Section 5.2 and Section 8.1):
(i) (A) as promptly as reasonably practicable following the Appointment Time, duly set a record date for, and take all action necessary in accordance with applicable Laws the DGCL and the Organizational Company Governing Documents of the Company to duly call and give notice ofof a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, convene the “Special Meeting”) for the purpose of considering and hold taking action upon this Agreement and the Merger (with the record date and meeting date set in person or virtuallyconsultation with Purchaser), in accordance with applicable Lawand (B) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of Appointment Time, convene and hold the Special Meeting (and adjourn or postpone the Special Meeting in accordance with Purchaser’s direction);
(ii) as promptly as reasonably practicable following the Appointment Time, file the definitive Proxy Statement with the SEC and cause the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC to be mailed to its stockholders; and
(and in any event will iii) use its reasonable best efforts to convene such meeting within forty-five (45A) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from its stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval Agreement and submit the proposal to adopt this Agreement to the (B) secure any approval of stockholders of the Company at that is required by the Company Stockholders Meeting. The Company DGCL and any other applicable Law to effect the Merger.
(c) At the Special Meeting or any postponement or adjournment thereof, Parent shall ensure that vote, or cause to be voted, all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduledShares then owned by it, there are insufficient shares of Company Common Stock represented (either in person Purchaser or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any their other Person to prevent the Company Stockholder Approval from being obtained. The Company, Subsidiaries in consultation with Parent, shall fix a record date for determining the stockholders favor of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid and to deliver or become payable to the named executive officers of the Company in connection with the Merger and matters of procedureprovide, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole a stockholder of Merger Sub Inc. in accordance with the Company, any other approvals that are required by the DGCL and any other applicable Law and to effect the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementMerger.
Appears in 2 contracts
Sources: Merger Agreement (Danaher Corp /De/), Merger Agreement (Beckman Coulter Inc)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of If the adoption of this AgreementAgreement by the Company's stockholders is required by Law, the Company shall, at Parent's request, as soon as practicable following the expiration of the Offer, prepare and file with the SEC the Proxy Statement in preliminary form, and each of the Company and Parent shall use its reasonable best efforts to obtain respond as promptly as practicable to any comments of the SEC or its staff with respect thereto. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. If at any time prior to receipt of the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company there shall ensure occur any event that all proxies solicited should be set forth in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn an amendment or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by ParentStatement, the Company shall promptly provide Parent with all voting tabulation reports relating prepare and mail to the its stockholders such an amendment or supplement. The Company Stockholders Meeting that have been prepared by the Company shall not mail any Proxy Statement, or the Company’s transfer agentany amendment or supplement thereto, proxy solicitor or other Representative, and shall otherwise keep to which Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect theretoobjects, unless such mailing is required by Law. Unless there has been a The Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and shall use their its reasonable best efforts to defend against any efforts by any of cause the Proxy Statement to be mailed to the Company’s 's stockholders or any other Person to prevent as promptly as practicable after filing and clearance with the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent SEC.
(which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (ib) If the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the Company's stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action is required by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIIILaw, the Company agrees that its obligations to shall, at Parent's request, as soon as practicable following the expiration of the Offer and the purchase of Shares pursuant thereto, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders' Meeting") for the purpose of seeking the Company Stockholders Stockholder Approval. The Company shall, through the Board of Directors of the Company, give the recommendation referred to in Section 2.2. Notwithstanding the foregoing, (i) if Purchaser or any other Subsidiary of Parent shall acquire at least 90% of the outstanding shares of Company Common Stock, the parties shall, at the request of Parent, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the expiration of the Offer without a stockholders meeting in accordance with Section 253 of the DGCL and (ii) the parties shall, at the request of Parent, take all necessary and appropriate action to effect the Merger through a written consent in lieu of the Company Stockholders' Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (includingextent permitted by, as applicableand in accordance with, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Eventapplicable Law.
(c) Immediately after Parent will provide the execution Company with the information concerning Parent and Purchaser required to be included in the Proxy Statement and will vote, or cause to be voted, all shares of Company Common Stock owned by it or its Subsidiaries in favor of the adoption of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Eig Acquisition Corp), Merger Agreement (Elite Information Group Inc)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents If approval of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve is required under DGCL in order to consummate the Merger:
(a) As promptly as practicable following the Appointment Time and adopt the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement at Agreement, if applicable, the Company Stockholders shall prepare and file as promptly as practicable with the SEC a proxy or information statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement shall include before it is filed with the SEC and the Company Board Recommendationshall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel with the intention that the Proxy Statement be in a form ready to print and mail to the stockholders of the Company as promptly as practicable following the Appointment Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable. The Company shall solicit from include in the Proxy Statement the recommendation of the Company Board of Directors that stockholders of the Company vote in favor of the adoption of this Agreement in accordance with the DGCL. The Company shall use its reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable law, and the Company further agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement as provided in Section 1.9(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Exchange Act or the SEC (or its staff).
(b) The Company, acting through the Company Board of Directors, shall, in accordance with and subject to the requirements of applicable law:
(i) (A) as promptly as practicable following the Appointment Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, duly set a record date for, call and give notice of a special meeting of its stockholders (the “Special Meeting”) for the purpose of considering and taking action upon this Agreement (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as practicable following the Appointment Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, convene and hold the Special Meeting;
(ii) cause the definitive Proxy Statement to be mailed to its stockholders; and
(iii) use its reasonable best efforts to (A) solicit from its stockholders proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval Agreement and submit the proposal to adopt this Agreement to the (B) secure any approval of stockholders of the Company at that is required by the Company Stockholders Meeting. The Company DGCL and any other applicable law to effect the Merger.
(c) At the Special Meeting or any postponement or adjournment thereof, Parent shall ensure that vote, or cause to be voted, all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduledShares then owned by it, there are insufficient shares of Company Common Stock represented (either in person Purchaser or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any their other Person to prevent the Company Stockholder Approval from being obtained. The Company, subsidiaries and affiliates in consultation with Parent, shall fix a record date for determining the stockholders favor of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid and to deliver or become payable to the named executive officers of the Company in connection with the Merger and matters of procedureprovide, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole a stockholder of Merger Sub Inc. in accordance with the Company, any other approvals that are required by the DGCL and any other applicable Law and law to effect the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementMerger.
Appears in 2 contracts
Sources: Merger Agreement (Cytyc Corp), Merger Agreement (Adeza Biomedical Corp)
Stockholders Meeting. The Company, acting through its Board of Directors (a) The or a committee thereof), shall as promptly as reasonably practicable following the date on which the Company shall is made aware that the SEC will not review the Proxy Statement or has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Laws required under the MGCL, the Company Charter, the Company Bylaws and the Organizational Documents applicable requirements of the Company NYSE necessary to promptly and duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following a meeting of its stockholders for the clearance purpose of (a) approving the Merger and (b) if and only if required or otherwise mutually agreed, a vote upon other matters of the type customarily brought before a meeting of stockholders in connection with the approval of a merger or the transactions contemplated by a merger agreement (including any adjournment or postponement thereof, the “Stockholders Meeting”); provided that the Company may (and, at the written request of Parent, shall) postpone, recess or adjourn such meeting (i) to the extent required by Law or duty, (ii) to allow reasonable additional time to solicit additional proxies to the extent the Company reasonably believes necessary in order to obtain the Company Requisite Vote, (iii) if as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the business of the Stockholders Meeting or (iv) to allow reasonable additional time for the filing and dissemination of any supplemental or amended disclosure which the Board of Directors of the Company has determined in good faith after consultation with outside counsel is necessary under applicable Law or duty and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders Meeting; provided that such adjournment or postponement shall not delay the Stockholders Meeting to a date on or after the fifth (5th) Business Day preceding the End Date, unless otherwise required by applicable Law. The Company, acting through its Board of Directors (or a committee thereof), shall (a) include in the Proxy Statement by the SEC and Recommendation (subject to Section 6.1(b)(iv)), and, subject to the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof)consent of ▇.▇. Except where a Company Change of Recommendation has been made in compliance with Section 6.3▇▇▇▇▇▇, the Company Board shall recommend that the stockholders written opinion of the Company approve ▇.▇. ▇▇▇▇▇▇, and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement(b) subject to Section 6.1(b)(iv), use its reasonable best efforts to obtain the Company Stockholder Approval Requisite Vote (it being understood that the foregoing shall not require the Board of Directors of the Company to recommend in favor of the approval of the Merger if a Change of Recommendation has been effected in accordance with Section 6.1(c)(i) or Section 6.1(c)(ii)); provided that the Board of Directors of the Company may (A) fail to include the Recommendation in the Proxy Statement, (B) withdraw, modify, qualify, amend or change the Recommendation, (C) fail to recommend in a Solicitation/Recommendation Statement on Schedule 14D-9 against any Acquisition Proposal that is a tender offer or exchange offer subject to Regulation 14D promulgated under the Exchange Act for outstanding shares of Common Stock (other than by Parent or an Affiliate of Parent), in each case, within ten (10) Business Days after the commencement thereof, it being understood and submit agreed that, for all purposes of this Agreement, a communication by the proposal Board of Directors of the Company to adopt the stockholders of the Company in accordance with Rule 14d-9(f) of the Exchange Act, or any similar communication to the stockholders of the Company in connection with the commencement of a tender offer or exchange offer, shall not, in and of itself, be deemed to constitute a Change of Recommendation (so long as any such disclosure (x) includes an express reaffirmation of the Recommendation, without any amendment, withdrawal, alteration, modification or qualification thereof and (y) does not include any statement that constitutes, and does not otherwise constitute, a Change of Recommendation), or (D) formally resolve to effect or publicly announce an intention or resolution to effect any of the foregoing (any of the actions described in the foregoing clauses (A) through (D), a “Change of Recommendation”), in each case solely in accordance with the terms and conditions of Section 6.1(c)(i) or Section 6.1(c)(ii) and, following such Change of Recommendation, may fail to use such reasonable best efforts; provided, however, that, for the avoidance of doubt, none of (I) the determination by the Board of Directors of the Company that an Acquisition Proposal constitutes a Superior Proposal, (II) the taking of any action by the Company, its Board of Directors or any of its Representatives permitted by Section 6.1(b) or (III) the delivery by the Company to Parent of any notice contemplated by Section 6.1(c)(i) or Section 6.1(c)(ii), in each case so long as the Company or the Board of Directors of the Company does not intentionally issue any public statement to such effect and does not otherwise effect a Change of Recommendation thereby, will in and of itself constitute a Change of Recommendation. Notwithstanding anything to the contrary herein, unless this Agreement has been terminated in accordance with its terms, the Stockholders Meeting shall be convened and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement and nothing contained herein shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable deemed to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to relieve the Company of any Company Competing Proposal or other proposal (includingsuch obligation, including as applicable, a Company Superior Proposal) or the occurrence or disclosure result of any Company Intervening Eventa Change of Recommendation.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (CorePoint Lodging Inc.), Merger Agreement (CorePoint Lodging Inc.)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of Subject to Section 5.3, the Company to duly give notice of, convene and hold (in person or virtuallywill take, in accordance with applicable Law) Law and its certificate of incorporation and bylaws, all action necessary to convene a meeting of holders of Company Common Stock (the Company “Stockholders Meeting, to be held ”) as promptly as reasonably practicable following after the clearance date of mailing of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts no more than 25 Business Days) to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve consider and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of vote upon the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant but subject to Article VIIISection 5.3, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its Company’s obligations pursuant to the first sentence of this Section 6.5 shall 5.5 will not be affected by the commencement, announcementpublic proposal, disclosure, public disclosure or communication to the Company of any Company Competing Takeover Proposal or other proposal (including, as applicable, the Company Board of Directors making a Company Superior ProposalAdverse Recommendation Change. Subject to Section 5.3(f), unless the Company shall have made a Company Adverse Recommendation Change, the Company Board of Directors will use its reasonable best efforts to solicit the Requisite Company Vote at the Stockholders Meeting. Prior to the mailing of the Proxy Statement, the Company will engage a proxy solicitor that is reasonably satisfactory to Parent. The Company shall keep Parent reasonably informed regarding its solicitation efforts and proxy tallies following the mailing of the Proxy Statement, including by allowing Parent and its Representatives to participate in any substantive meeting or discussion with such proxy solicitor, in each case, to the extent practicable; provided, however, that the foregoing right for Parent and its Representatives to participate in meetings or discussions shall not apply from and after a Company Adverse Recommendation Change. Notwithstanding anything in this Agreement to the contrary, the Company may only postpone or adjourn the Stockholders Meeting (i) or to solicit additional proxies for the occurrence or disclosure purpose of obtaining the Requisite Company Vote, (ii) for the absence of a quorum, (iii) to allow reasonable additional time for the filing and/or mailing of any supplemental or amended disclosure that the Company Intervening Event.
(c) Immediately has determined after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance consultation with outside legal counsel is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Organizational Documents of Merger Sub Inc. and deliver Company’s stockholders prior to the Company evidence of its vote Stockholders Meeting, or action by (iv) with the written consent so adopting this Agreementof Parent, which may be withheld in its sole discretion.
Appears in 2 contracts
Sources: Merger Agreement (Valspar Corp), Merger Agreement (Sherwin Williams Co)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) a meeting of its stockholders for the purpose of obtaining the Company Stockholders MeetingStockholder Approval, to be held as promptly as reasonably practicable following the clearance of the Joint Proxy Statement by the SEC and the Merger Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof)SEC. Except where a Company Change of Recommendation has been made in compliance with as permitted by Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this AgreementAgreement and the Transactions, use its reasonable best efforts to obtain and the Joint Proxy Statement shall include the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable LawsBoard Recommendation. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Joint Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten fifteen (1015) Business Days after the date for which the meeting was previously scheduled except as (it being understood that such Company Stockholders Meeting shall be adjourned or postponed every time the circumstances described in the foregoing clauses (i)(A) and (i)(B) exist, and such Company Stockholders Meeting may be required by applicable Lawadjourned or postponed every time the circumstances described in the foregoing clause (ii) exist); (y) and provided further that the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two three (23) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the The Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix Once the Company has established a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), unless required to do so by applicable Law or its Organizational Documents or in connection with a postponement or adjournment permitted hereunder. Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Parent shall take all action necessary in accordance with applicable Laws and the Organizational Documents of Parent to duly give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Parent Stockholder Approval, to be held as promptly as reasonably practicable following the clearance of the Joint Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC. Except as permitted by Section 6.4(e), the Parent Board shall recommend that the stockholders of Parent approve the Parent Stock Issuance and the Parent Board shall solicit from stockholders of Parent proxies in favor of the Parent Stock Issuance, and the Joint Proxy Statement shall include the Parent Board Recommendation. Notwithstanding anything to the contrary contained in this Agreement, Parent
(i) shall be required to adjourn or postpone the Parent Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Joint Proxy Statement is provided to the Parent’s stockholders or (B) if, as of the time for which the Parent Stockholders Meeting is scheduled, there are insufficient shares of Parent Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Parent Stockholders Meeting and (ii) may adjourn or postpone the Parent Stockholders Meeting if, as of the time for which the Parent Stockholders Meeting is scheduled, there are insufficient shares of Parent Common Stock represented (either in person or by proxy) to obtain the Parent Stockholder Approval; provided, however, that unless otherwise agreed to by the Parties, the Parent Stockholders Meeting shall not be adjourned or postponed to a date that is more than fifteen (15) Business Days after the date for which the meeting was previously scheduled (it being understood that such Parent Stockholders Meeting shall be adjourned or postponed every time the circumstances described in the foregoing clauses (i)(A) and (i)(B) exist, and such Parent Stockholders Meeting may be adjourned or postponed every time the circumstances described in the foregoing clause (ii) exist); and provided further that the Parent Stockholders Meeting shall not be adjourned or postponed to a date on or after three (3) Business Days prior to the Outside Date. If requested by the Company, Parent shall promptly provide the Company with all voting tabulation reports relating to the Parent Stockholders Meeting that have been prepared by Parent or Parent’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep the Company reasonably informed regarding the status of the solicitation and any material oral or written communications from or to Parent’s stockholders with respect thereto. Unless there has been a Parent Change of Recommendation in accordance with Section 6.4, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Parent’s stockholders or any other Person to prevent the Parent Stockholder Approval from being obtained. Once Parent has established a record date for the Parent Stockholders Meeting, Parent shall not change such record date or establish a different record date for the Parent Stockholders Meeting without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), unless required to do so by applicable Law or its Organizational Documents or in connection with a postponement or adjournment permitted hereunder.
(c) The Parties shall cooperate and use their reasonable best efforts to set the record dates for and hold the Company Stockholders Meeting and the Parent Stockholders Meeting, as applicable, on the same day and within two (2) Business Days after the Exchange Offer Expiration Date and at approximately the same time.
(d) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, each of the Company and Parent agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting and the Parent Stockholders Meeting, as applicable, pursuant to this Section 6.5 6.6 shall not be affected by the making of a Company Change of Recommendation or a Parent Change of Recommendation, as applicable, and its obligations pursuant to this Section 6.5 6.6 shall not be affected by the commencement, announcement, disclosure, or communication to the Company or Parent, as applicable, of any Company Competing Proposal or Parent Competing Proposal or other proposal (including, as applicablewith respect to the Company, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event or Parent Intervening Event. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, the Company shall not be required to convene the Company Stockholders Meeting after (x) the Company Chapter 11 Cases have commenced or (y) the Company stipulates to bankruptcy relief after the occurrence of an Involuntary Insolvency Event pursuant to Section 6.24(a)(v).
(ce) Immediately after the execution of this Agreement, Parent shall duly approve and adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so approving and adopting this Agreement.
Appears in 2 contracts
Sources: Transaction Support Agreement (HighPoint Resources Corp), Merger Agreement (HighPoint Resources Corp)
Stockholders Meeting. (a) The Company, acting through the Company Board, shall take all action necessary in accordance with applicable Laws the Delaware Law and the Organizational Company Charter Documents to call, hold and convene a meeting of the Company to duly give notice of, convene and hold stockholders (in person or virtually, in accordance with applicable Lawthe “Stockholder Meeting”) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance date of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (this Agreement and in any event will use commercially reasonable best efforts (to convene such meeting the extent permissible under Applicable Law) to cause the Stockholder Meeting to be convened within forty-five (45) days thereofafter the mailing of the Proxy Statement to Company stockholders. Subject to Section 6.4(b). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall use commercially reasonable efforts to solicit from its stockholders of the Company proxies in favor of the adoption and approval of this Agreement, use its reasonable best efforts the approval of the Merger and the other transactions contemplated hereby, and shall take all other action required by the Delaware Law, all other Applicable Law and the applicable rules and regulations of Nasdaq to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Lawssuch approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to may adjourn or postpone the Company Stockholders Stockholder Meeting (A) after consultation with Parent to the extent necessary to ensure that any legally required necessary supplement or amendment to the Proxy Statement is provided to its stockholders in advance of a vote on the Company’s stockholders or (B) ifMerger and this Agreement or, if as of the time for which the Company Stockholders Stockholder Meeting is scheduled, scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such of the Stockholder Meeting. The Company Stockholders shall ensure that the Stockholder Meeting is called, noticed, convened, held and (ii) may adjourn or postpone the Company Stockholders Meeting conducted, and that all proxies solicited by it in connection with the written consent of Parent if, as of Stockholder Meeting are solicited in compliance with the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the PartiesDelaware Law, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten Charter Documents and the applicable rules and regulations of Nasdaq.
(10b) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior Except to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayedextent expressly permitted by Section 6.4(b). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement Company Board shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) recommend that the Company shall propose to be acted on by the Company’s stockholders vote in favor of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or at the consummation of the Transactions) and Stockholder Meeting, (ii) the Company Proxy Statement shall not call any meeting of include a statement to the stockholders of effect that the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected Board has recommended by the making unanimous approval of all directors present at a Company Change of Recommendation and its obligations pursuant duly called meeting held prior to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement that the Company’s stockholders vote in favor of the adoption and approval of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder approval of the Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. other transactions contemplated hereby at the Stockholder Meeting (the “Board Recommendation”) and deliver to (iii) neither the Company evidence Board nor any committee thereof shall withdraw, amend or modify, or propose or resolve to withdraw, amend or modify in a manner adverse to Parent, the recommendation of its Board of Directors that the Company’s stockholders vote or action by written consent so adopting in favor of the adoption and approval of this Agreement, the approval of the Merger and the other transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Axway Inc.), Merger Agreement (Tumbleweed Communications Corp)
Stockholders Meeting. If approval of the stockholders of the Company is required under the DGCL in order to consummate the Merger:
(a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as As promptly as reasonably practicable following the clearance Appointment Time and the expiration of any subsequent offering period provided pursuant to Section 1.1(f), the Company shall prepare and file with the SEC a preliminary proxy or information statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the "Proxy Statement") relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement by before it is filed with the SEC and the Registration Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company shall include in the Proxy Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change recommendation of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend of Directors that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies vote in favor of the adoption of this Agreement, Agreement in accordance with the DGCL. The Company and Parent shall use its their reasonable best efforts to obtain and furnish the Company Stockholder Approval information required to be included by the SEC in the Proxy Statement and submit the proposal Company, after consultation with Purchaser, shall respond promptly to adopt this Agreement any comments made by the SEC with respect to the stockholders of the Company at the Company Stockholders MeetingProxy Statement. The Company shall ensure provide Parent and its counsel with copies of any written comments, and shall use reasonable efforts to inform them of any oral comments, that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance or its counsel may receive from time to time from the SEC or its staff with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment respect to the Proxy Statement is provided to promptly after the Company’s stockholders 's receipt of such comments, and any written or (B) iforal responses thereto. Parent, as of the time for which Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses and the Company Stockholders Meeting is scheduledshall give due consideration to all reasonable additions, there are insufficient shares of Company Common Stock represented (either in person deletions or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested changes suggested thereto by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, Purchaser and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtainedcounsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in consultation the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable law and, the Company further agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed with Parentthe SEC and, shall fix if any such correction is made following the mailing of the Proxy Statement as provided in Section 1.9(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Exchange Act or the SEC (or its staff).
(b) The Company, acting through the Company Board of Directors, shall, in accordance with and subject to the requirements of applicable law:
(i) (A) as promptly as practicable following the Appointment Time and the expiration of any subsequent offering period provided pursuant to Section 1.1(f), duly set a record date for determining for, call and give notice of a special meeting of its stockholders (the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders "Special Meeting, the Company shall not change such record date or establish a different record date ") for the Company Stockholders Meeting without sole purpose of obtaining the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on approval by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with of the adoption of this Agreement or in accordance with the consummation of DGCL (with the Transactions) record date and meeting date set in consultation with Purchaser), and (iiB) as promptly as practicable following the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice ofAppointment Time, convene and hold the Special Meeting;
(ii) cause the definitive Proxy Statement to be mailed to its stockholders; and
(iii) use its commercially reasonable efforts to secure any approval of stockholders of the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected that is required by the making of a Company Change of Recommendation and its obligations pursuant DGCL to this Section 6.5 shall not be affected by effect the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening EventMerger.
(c) Immediately after At the execution of this AgreementSpecial Meeting or any postponement or adjournment thereof, Parent shall duly adopt vote, or cause to be voted, all of the Shares then owned by it, Purchaser or any of their other Subsidiaries in favor of the adoption of this Agreement in accordance with the DGCL and to deliver or provide, in its capacity as the sole a stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver Company, any other approvals that are required by the DGCL to effect the Company evidence of its vote or action by written consent so adopting this AgreementMerger.
Appears in 2 contracts
Sources: Merger Agreement (Hewlett Packard Co), Merger Agreement (Opsware Inc)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents If approval of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve is required under the DGCL to consummate the Merger:
(a) The Company, acting through (or upon authorization by) the Board of Directors of the Company, shall, in accordance with and adopt this Agreement at subject to the Company Stockholders Meeting requirements of the Company’s Constituent Documents and applicable law:
(i) (A) as promptly as practicable following the Acceptance Time and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders expiration of the Company proxies any “subsequent offering period” provided by Purchaser pursuant to and in favor of the adoption of accordance with this Agreement, if applicable, duly set a record date for, call and give notice of a special meeting of its stockholders (the “Special Meeting”) for the purpose of considering and taking action upon this Agreement (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as practicable following the Acceptance Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, convene and hold the Special Meeting;
(ii) cause the definitive Proxy Statement to be mailed to its stockholders as promptly as possible after the date that the SEC staff advises that it has no further comments thereon or that the Company may commence mailing the proxy statement; and
(iii) use its reasonable best efforts to obtain secure any approval in favor of the Company Stockholder Approval approval and submit adoption of the proposal to adopt this Agreement to by the stockholders of the Company at that is required by the Company Stockholders Meeting. Company’s Constituent Documents and the DGCL and any other applicable law to effect the Merger.
(b) The Company shall ensure that all proxies solicited in connection with not postpone or adjourn the Company Stockholders Special Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to except that, after receiving the contrary contained in this Agreementwritten consent of the Parent, the Company (i) shall be required to may adjourn or postpone the Company Stockholders Special Meeting (A) to the extent legally necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) ifor, if as of the time for which the Company Stockholders Special Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which Special Meeting. After the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the PartiesAcceptance Time, the Company Stockholders Meeting shall not be adjourned prepare and distribute as promptly as practicable any such required supplement or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior amendment to the Outside Date; Proxy Statement and (z) no following any such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Special Meeting, the Company shall not change take all action necessary to reconvene the Special Meeting as promptly as practicable after such record date adjournment or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Eventpostponement.
(c) Immediately after At the execution of this AgreementSpecial Meeting or any postponement or adjournment thereof, Parent shall duly adopt vote, or cause to be voted, all of the Shares then owned by it, Purchaser or any of their respective affiliates in favor of the approval and adoption of this Agreement and to deliver or provide, in its capacity as the sole a stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action otherwise, any other approvals that are required by written consent so adopting this Agreementthe DGCL and any other applicable law to effect the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Amazon Com Inc), Merger Agreement (Audible Inc)
Stockholders Meeting. (a) The Subject to Section 5.10, the Company, acting through the Company shall take all action necessary Board, shall, in accordance with applicable Laws law and the Organizational Documents its certificate of the Company to incorporation and bylaws, duly call, give notice of, convene and hold a special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following the clearance by the SEC of the Proxy Statement for the purpose of considering and voting upon the approval and adoption of this Agreement, the Merger and such other matters as may be necessary to effectuate the Transactions. The Company Board shall (i) recommend to the stockholders of the Company the approval and adoption of this Agreement and the Merger, (ii) include in person the Proxy Statement such favorable recommendation of the Company Board that the stockholders of the Company vote in favor of the approval and adoption of this Agreement, (iii) take all lawful actions to solicit such approval from the stockholders of the Company and (iv) not withdraw or virtuallymodify such favorable recommendation; provided, however, notwithstanding the foregoing, the Company Board may withdraw, change or modify such favorable recommendation, cancel, delay or adjourn the Stockholders Meeting or not submit this Agreement or the Merger for approval by the Company’s Stockholders at the Stockholders’ Meeting or any adjournment thereof if, in accordance with applicable Law) each case, the Company Board, after consultation with independent outside legal counsel, determines in good faith that taking such action is necessary for the Company Board to comply with its fiduciary duties to the Company’s stockholders under applicable law.
(b) As soon as reasonably practicable following the execution of this Agreement and in connection with the Stockholders Meeting, the Company shall (i) promptly prepare and file with the SEC, use its commercially reasonable efforts to be held have cleared by the SEC and thereafter mail to its stockholders as promptly as reasonably practicable the Proxy Statement and all other proxy materials required in connection with such meeting, (ii) notify Merger Sub and Parent of the receipt of any comments of the SEC with respect to the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to Merger Sub and Parent copies of all correspondence between the Company or any representative of the Company and the SEC, (iii) give Merger Sub and Parent and their counsel the opportunity to review the Proxy Statement prior to its being filed with the SEC and shall give Merger Sub and Parent and their counsel the opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the SEC, (iv) subject to Section 5.02(a) and the right of the Company to terminate this Agreement as provided in Section 5.10(b), use its commercially reasonable efforts to obtain the necessary approvals by its stockholders of this Agreement and the Merger and (v) use its commercially reasonable efforts to set a record date for the Stockholders Meeting as early as practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective or a determination by the SEC (not to review the Proxy Statement and in any event otherwise to comply with all legal requirements applicable to the Stockholders Meeting. Parent and Merger Sub will use commercially reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, deliver to the Company Board shall recommend all readily available information reasonably requested by the Company for inclusion in the Proxy Statement. The Company may, if it has complied with the provisions of Section 5.10 and this Section 5.02, and it receives a bona fide Acquisition Proposal that it reasonably expects could result in a Superior Proposal, delay the stockholders mailing of the Proxy Statement or the holding of the Stockholders Meeting, in each case, for such time as is necessary for the board of directors of the Company approve to consider such Acquisition Proposal and adopt this Agreement at to determine the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies effect, if any, on its recommendation in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder ApprovalMerger; provided, however, that in no event shall such delay exceed three (x3) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meetingconsecutive business days.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Datastream Systems Inc), Merger Agreement (Magellan Holdings, Inc.)
Stockholders Meeting. (a) The Company shall take all action necessary shall, in accordance with applicable Laws and Law, the Organizational Documents certificate of incorporation of the Company to and the bylaws of the Company, duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) a special meeting of the Company Stockholders (including any adjournment or postponement thereof, the “Company Stockholders’ Meeting, to be held ”) as promptly as reasonably practicable following after the clearance U.S. Securities and Exchange Commission (the “SEC”) confirms that it has no comments or no further comments, as the case may be, to the Proxy Statement, for the purpose of obtaining the Company Stockholder Approval. Any adjournments or postponements of the Company Stockholders’ Meeting or any recess of the Company Stockholders’ Meeting beyond the originally scheduled meeting date (as set forth in the Proxy Statement) shall require the prior written consent of Parent. The Company shall use its reasonable best efforts to solicit from holders of Shares proxies in favor of adoption of this Agreement and approval of the Merger and to take all actions reasonably necessary or advisable to secure the approval of stockholders required by the NYBCL, the Company’s certificate of incorporation and bylaws and any other applicable Law to effect the Merger.
(b) In accordance with applicable Law, promptly after the date hereof, the Company shall prepare and file with the SEC a preliminary proxy statement relating to the Merger and this Agreement (together with any amendments and supplements thereto, the “Proxy Statement”). Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review and provide comments on the Proxy Statement by before it is filed with the SEC and the Registration Statement is declared effective Company shall consider in good faith any revisions suggested by Parent or Merger Sub. The Company agrees to provide Parent, Merger Sub and their counsel (i) in writing with any comments or communications that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after the Company’s receipt of such comments, and any oral or written responses thereto and (ii) a reasonable opportunity to provide comments on the proposed response of the Company to those comments and to participate with the Company in any event will material discussions or meetings with the SEC. The Company shall use its reasonable best efforts to convene such meeting within forty-five (45i) days thereof). Except where a Company Change of Recommendation has been obtain and furnish the information required to be included by the SEC in the Proxy Statement, (ii) subject to the preceding sentence, respond promptly to any comments made in compliance by the SEC with Section 6.3respect to the Proxy Statement, (iii) cause the Company Board shall recommend that the Proxy Statement to be mailed to its stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the as soon as reasonably practicable, which Proxy Statement shall include all information required under applicable Law to be furnished to the Company Stockholders in connection with the Merger and the transactions contemplated by this Agreement, and shall include the Company Board Recommendation and the full text of the written opinion described in Section 3.24, and (iv) obtain the necessary approvals of this Agreement, the Merger and the transactions contemplated by this Agreement and the adoption of this Agreement by the Company Stockholders.
(c) If at any time prior to the Company Stockholders’ Meeting any information relating to Parent, Merger Sub or the Company, or any of their respective Subsidiaries, executive officers or directors, should become known to Parent or the Company which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in 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 the Company shall promptly file an amendment or supplement describing such information with the SEC and, to the extent required by applicable Law, disseminate such amendment or supplement to the Company Stockholders.
(d) Subject to Section 5.2(e), the Company shall, through the Board of Directors of the Company, recommend to the Company Stockholders adoption of this Agreement, including the Merger and the transactions contemplated by this Agreement, and, except as expressly permitted by this Agreement, shall not withdraw, amend or modify in a manner adverse to Parent the Company Board Recommendation. The Company shall solicit from stockholders of ensure that the Company proxies in favor of the adoption of this AgreementStockholders’ Meeting is duly called, use its reasonable best efforts to obtain the Company Stockholder Approval noticed, convened, held and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure conducted, and that all proxies solicited in connection with the Company Stockholders Stockholders’ Meeting are solicited in compliance with any applicable LawsLaw. Notwithstanding anything Parent agrees that it will vote, or cause to the contrary contained in this Agreementbe voted, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as all of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person common stock then owned by it, Merger Sub or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the CompanyParent’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, Subsidiaries in consultation with Parent, shall fix a record date for determining the stockholders favor of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be and the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers approval of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(be) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, (i) the Company agrees that its obligations obligation to duly call, give notice of, convene and hold the Company Stockholders Meeting pursuant to Stockholders’ Meeting, as required by this Section 6.5 1.6, shall not be affected by the making withdrawal, amendment or modification of a the Company Change of Recommendation Board Recommendation, and (ii) the Company agrees that its obligations pursuant to this Section 6.5 1.6 shall not be affected by the commencement, announcementpublic proposal, disclosure, public disclosure or communication to the Company or any Subsidiary of the Company of any Company Competing Superior Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Eventdefined in Section 9.4).
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 2 contracts
Sources: Purchase Agreement (Hospitality Properties Trust), Merger Agreement (Sonesta International Hotels Corp)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as As promptly as reasonably practicable following the clearance of Closing Date, the Company shall prepare and file the Proxy Statement by with the SEC Commission. JLL shall cooperate, and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3provide to, the Company Board shall recommend that all such information as may be necessary or appropriate regarding the stockholders Purchasers for inclusion in the Proxy Statement. The Company shall, as promptly as practicable after receipt thereof, provide JLL copies of the Company approve any written comments and adopt this Agreement at the Company Stockholders Meeting and advise JLL of any oral comments, with respect to the Proxy Statement shall include received from the Company Board RecommendationCommission. The Company shall solicit from stockholders advise JLL of any request by the Commission for amendment of the Proxy Statement. If at any time any information relating to Company proxies and the Purchasers, or any of their respective affiliates, officers or directors, should be discovered by the Company or JLL, which should be set forth in favor an amendment or supplement to the Proxy Statement so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the adoption of this Agreementcircumstances under which they were made, use its reasonable best efforts not misleading, the party which discovers such information shall promptly notify the other party hereto and, to obtain the Company Stockholder Approval extent required by Law, an appropriate amendment or supplement describing such information shall be promptly filed with the Commission and submit the proposal to adopt this Agreement disseminated to the stockholders of the Company at the Company Stockholders Meeting. Company.
(b) The Company shall ensure that call a stockholders' meeting, to be held as soon as reasonably practicable after the Commission's review of the Proxy Statement, for the purpose of voting upon the Stockholder Proposal, and the Company shall use all proxies solicited in reasonable efforts to cause such stockholders' meeting to be held within 120 days following the Closing Date. In connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law's stockholders' meeting, (i) the adoption Company shall mail the Proxy Statement to its stockholders, (ii) the Board of this Agreement Directors shall be recommend to its stockholders the only matter approval of the Stockholder Proposal, and (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to iii) the named executive Board of Directors and officers of the Company in connection with shall use their commercially reasonable efforts to obtain the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening EventRequisite Stockholder Approval.
(c) Immediately after The Company covenants that (i) the execution Proxy Statement when filed with the Commission will comply as to form in all material respects with the applicable requirements of the Exchange Act, and (ii) at the time the Proxy Statement is first mailed to stockholders of the Company, and at the time such stockholders vote on approval of the matters for which Requisite Stockholder Approval is to be obtained, the Proxy Statement will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing covenants contained in this Agreement, Parent shall duly adopt this Agreement Section 5.4(c) will not apply to statements or omissions included in its capacity as the sole stockholder of Merger Sub Inc. Proxy Statement based upon information furnished in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver writing to the Company evidence by the Purchasers specifically for use therein.
(d) In the event (i) the Board of Directors or any committee thereof withdraws, modifies, changes or qualifies, or publicly proposes to withdraw, modify, change or qualify, in a manner adverse to JLL its approval or recommendation of the Stockholder Proposal or (ii) any member of the Board of Directors or any executive officer of the Company, directly or through a representative, makes or causes to be made a statement, publicly or for public dissemination, that indicates such person does not recommend or support, without qualification, the approval by the Company's stockholders of the Stockholder Proposal, within three business days of JLL's request therefor, the Board of Directors fails to reaffirm publicly and unconditionally its recommendation to the Company's stockholders of the Stockholder Proposal, the Company shall pay to JLL a fee, in cash, equal to $5 million. The Company shall pay such fee no later than five business days following JLL's written request therefor by wire transfer of immediately available funds in the amount set forth in the preceding sentence to such bank account as may be designated by JLL.
(e) The Company shall use its reasonable efforts to persuade Blue Cross and Blue Shield of Texas, a division of Health Care Service Corporation, to execute and deliver, prior to the mailing of the Proxy Statement to the stockholders of the Company, a voting agreement substantially in the form attached to this Agreement as Exhibit D or as otherwise agreed upon in good faith by the Company and JLL.
(f) JLL shall, and shall cause any other Purchaser or any Person controlled by JLL or any Purchaser to, vote all of its shares of Preferred Stock (to the extent any such shares are entitled to vote or action by written consent so adopting this Agreementthereon) and Common Stock in favor of the Stockholder Proposal at any meeting of the Company's stockholders with respect thereto.
(g) The Company shall use its reasonable efforts to set the record date for the stockholders' meeting at which the Stockholder Proposal will be considered prior to the Company's earnings release for the quarter ended September 30, 2000.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Advance Paradigm Inc), Securities Purchase Agreement (Littlejohn Joseph & Levy Fund Iii Lp)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and Company, acting through (or upon authorization by) the Organizational Documents Board of Directors of the Company to duly give notice ofCompany, convene and hold (in person or virtuallyshall, in accordance with and subject to the requirements of the Company’s Constituent Documents and applicable LawLaw and subject to Section 1.2(b):
(i) the Company Stockholders Meeting, to be held (A) as promptly as reasonably practicable following after the clearance date hereof, duly set a record date for, call and give notice of a special meeting of its stockholders (the Proxy Statement by “Special Meeting”) for the SEC purpose of considering and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of taking action upon this Agreement, and (B) as promptly as practicable after the date hereof convene and hold the Special Meeting;
(ii) cause the definitive Proxy Statement to be mailed to its stockholders as promptly as possible after the date that the SEC staff advises that it has no further comments thereon or that the Company may commence mailing the proxy statement; and
(iii) use its reasonable best efforts to obtain secure any approval in favor of the Company Stockholder Approval approval and submit adoption of the proposal to adopt this Agreement to by the stockholders of the Company at that is required by the Company Stockholders Meeting. Company’s Constituent Documents and the DGCL and any other applicable Law to effect the Merger.
(b) The Company shall ensure that all proxies solicited in connection with not postpone or adjourn the Company Stockholders Special Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to except that, after receiving the contrary contained in this Agreementwritten consent of the Parent, the Company (i) shall be required to adjourn or postpone the Company Stockholders Special Meeting (A) to the extent legally necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) ifor, if as of the time for which the Company Stockholders Special Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which Special Meeting. After the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the PartiesAcceptance Time, the Company Stockholders Meeting shall not be adjourned prepare and distribute as promptly as practicable any such required supplement or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior amendment to the Outside Date; Proxy Statement and (z) no following any such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Special Meeting, the Company shall not change take all action necessary to reconvene the Special Meeting as promptly as practicable after such record date adjournment or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Eventpostponement.
(c) Immediately after At the execution of this AgreementSpecial Meeting or any postponement or adjournment thereof, Parent shall duly adopt vote, or cause to be voted, all of the Shares then owned by it, Purchaser or any of their respective affiliates in favor of the approval and adoption of this Agreement and deliver or provide, in its capacity as the sole a stockholder of Merger Sub Inc. in accordance with the Company or otherwise, any other approvals that are required by the DGCL and any other applicable Law and to effect the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementMerger.
Appears in 2 contracts
Sources: Merger Agreement (GCP Sunshine Acquisition, Inc. A Delaware Corp), Agreement and Plan of Merger (American Land Lease Inc)
Stockholders Meeting. (a) The Company shall Seller shall, as promptly as practicable after the Proxy Statement is filed with the SEC, subject to compliance with the Exchange Act, including Rule 14a-6 promulgated thereunder, take all action necessary in accordance with applicable Laws Applicable Law and the Organizational Documents of the Company Seller Charter Documents, to duly give notice of, convene and hold (in person or virtuallythe Seller Stockholders’ Meeting. Subject to Section 5.2(d), in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event Seller will use commercially reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from its stockholders of the Company proxies in favor of the adoption approval of the transactions contemplated by this Agreement, use and will take all other action necessary or advisable to secure the vote or consent of its reasonable best efforts stockholders required by Applicable Law to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Lawssuch approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to Seller may adjourn or postpone the Company Stockholders Seller Stockholders’ Meeting (A) to the extent necessary to ensure that any legally required necessary supplement or amendment to the Proxy Statement is provided to its stockholders in advance of a vote on and the Company’s stockholders or (B) approval of the transactions contemplated by this Agreement, or, if, as of the time for which the Company Stockholders Seller Stockholders’ Meeting is originally scheduled, there are insufficient shares of Company Seller Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of such Company Stockholders meeting. The Seller shall ensure that the Seller Stockholders’ Meeting is called, noticed, convened, held and (ii) may adjourn or postpone the Company Stockholders Meeting conducted, and that all proxies solicited in connection with the written consent of Parent if, as of the time for which the Company Stockholders Seller Stockholders’ Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either solicited in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable compliance with Applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and Notwithstanding any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3by the Board of Directors of Seller, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any approval of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required transactions contemplated by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable submitted to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company Seller Stockholders at the Company Stockholders Meeting Seller Stockholders’ Meeting, and nothing contained herein shall be deemed to relieve the Company shall not submit any other proposal to Buyer or Seller of such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meetingobligations.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Bio Key International Inc), Asset Purchase Agreement (Bio Key International Inc)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtuallywill use, in accordance with applicable Law) Law and the Company Stockholders MeetingCharter and Company Bylaws, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use its reasonable best efforts to convene such and hold a meeting within forty-five of holders of Shares to consider and vote upon the adoption of this Agreement (45the “Company Stockholders Meeting”) not more than 45 days thereof)after the date the S-4 Registration Statement is declared effective. Except where a Company Change Subject to the provisions of Recommendation has been made in compliance with Section 6.36.2, the Company Company’s Board of Directors shall recommend that in the stockholders of the Company approve Prospectus/Proxy Statement and adopt this Agreement at the Company Stockholders Meeting that the holders of Shares adopt this Agreement and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Lawssolicit such adoption. Notwithstanding anything to the contrary contained in this Agreementforegoing, if on a date preceding the Company (i) shall be required to adjourn date on which or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for date on which the Company Stockholders Meeting is scheduled, there are insufficient shares of the Company Common Stock reasonably believes that (i) it will not receive proxies representing the Company Requisite Vote, whether or not a quorum is present, or (ii) it will not have enough Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date may postpone or establish a different record date for adjourn, or make one or more successive postponements or adjournments of, the Company Stockholders Meeting without as long as the date of the Company Stockholders Meeting is not postponed or adjourned more than an aggregate of 15 calendar days in connection with any postponements or adjournments in reliance on the preceding sentence. In the event that during the five business days prior written consent to the date that the Company Stockholders Meeting is then scheduled to be held, the Company delivers a notice of an intent to make a Change in Recommendation and/or Superior Proposal Termination (including in connection with an amendment pursuant to the last sentence of Section 6.2(f)), Parent may direct the Company to postpone the Company Stockholders Meeting for up to five business days and the Company shall promptly, and in any event no later than the next business day, postpone the Company Stockholders Meeting in accordance with Parent’s direction.
(which consent b) Notwithstanding any Change in Recommendation, the Company shall not be unreasonably withheld, conditioned or delayed)nonetheless submit this Agreement to the holders of Shares for adoption at the Company Stockholders Meeting unless this Agreement is terminated in accordance with Article VIII prior to the Company Stockholders Meeting. Without the prior written consent of Parent or as required by applicable LawParent, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may matters of procedure and matters required by Law to be paid or become payable to voted on by the named executive officers of the Company Company’s stockholders in connection with the Merger approval of this Agreement and matters of procedure, including any adjournment proposalthe transactions contemplated hereby) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (At&t Inc.), Merger Agreement (Directv)
Stockholders Meeting. (a) The Company, acting through the Company Board, shall take all action necessary actions in accordance with applicable Laws Law, its Certificate of Incorporation and By-laws and the Organizational Documents rules of the Company The NASDAQ Stock Market to promptly and duly call, give notice of, convene and hold (as promptly as practicable the Company Meeting for the purpose of considering and voting upon the Company Voting Proposal. Notwithstanding anything to the contrary in person this Agreement, the Company shall not be required to call, give notice of or virtuallyconvene the Company Meeting or mail the Proxy Statement, in accordance with applicable Law) each case prior to the commencement of the Exclusivity Period; provided that the Company Stockholders Meeting, shall cause the Proxy Statement to be held mailed to the Company’s stockholders as of the record date established for the Company Meeting as promptly as reasonably practicable following after the clearance later of (i) the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement by and (ii) the SEC and commencement of the Registration Statement is declared effective by Exclusivity Period. Subject to the SEC occurrence of an Adverse Recommendation Change pursuant to Section 6.1, (and in any event will use reasonable best efforts to convene such meeting within forty-five (45a) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that adoption of the Company Voting Proposal by the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and include such recommendation in the Proxy Statement shall include and (b) the Company Board Recommendation. The Company shall solicit from stockholders not withhold, withdraw or modify, or publicly propose or resolve to withhold, withdraw or modify in a manner adverse to the Buyer, the recommendation of the Company Board that the Company’s stockholders vote in favor of the Company Voting Proposal. Subject to the occurrence of an Adverse Recommendation Change pursuant to Section 6.1, the Company shall take all action that is both reasonable and lawful to solicit from its stockholders proxies in favor of the adoption Company Voting Proposal and shall take all other action reasonably necessary or advisable to secure the vote or consent of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at required by the Company Stockholders Meeting. rules of The Company shall ensure that all proxies solicited in connection with NASDAQ Stock Market or the Company Stockholders Meeting are solicited in compliance with any applicable LawsDGCL to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to may adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that provide any legally required supplement or amendment to the Proxy Statement to the Company’s stockholders in advance of the Company Meeting (solely in the event that such supplement or amendment is provided determined by the Company Board in good faith, after consultation with outside counsel, to be required to comply with its fiduciary duty of disclosure to the Company’s stockholders or (B) ifapplicable securities Laws and then, only for so long as the Company Board determines in good faith, after having taken into account the advice of outside counsel, that such action is necessary to give the Company’s stockholders sufficient time to evaluate any information or disclosures that the Company has sent to stockholders or otherwise made available by issuing a press release or filing materials with the SEC), or if as of the time for which the Company Stockholders Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) and voting in favor to approve the Company Voting Proposal or to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone of the Company Stockholders Meeting with the written consent of Parent if, as of the time for but only until a Company Meeting may be held at which the Company Stockholders Meeting is scheduled, there are insufficient a sufficient number of shares of Company Common Stock represented (either in person or by proxy) to obtain a quorum or the Company Stockholder Approval; provided, however, that Required Vote (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is and in no event more than ten (10) Business Days the earlier of 30 days after the date for which the originally scheduled meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to and the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents Subject to fiduciary obligations of the Company’s Board of Directors or any committee thereof under applicable Law, the Company to duly give notice of, convene and hold (in person or virtuallywill take, in accordance with applicable Law) Law and its certificate of incorporation and bylaws, all reasonable action necessary to convene a meeting of Record Holders of Common Shares (the Company “Stockholders Meeting, to be held ”) as promptly as reasonably practicable following after the clearance date of mailing of the Proxy Statement by the SEC to consider and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of vote upon the adoption of this Agreement; provided, use its reasonable best efforts to obtain however, for the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders avoidance of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreementdoubt, the Company may postpone or adjourn the Stockholders Meeting (i) shall be required to adjourn or postpone with the Company Stockholders Meeting consent of Parent; (Aii) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, if as of the time for which the Company Stockholders Meeting is scheduled, scheduled there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the Stockholders Meeting; (iii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Company Stockholders Meeting is scheduled, there are insufficient shares Board of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders Directors of the Company entitled or any committee thereof has determined in good faith after consultation with its outside legal counsel is necessary under applicable Law and for such supplemental or amended disclosure to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested disseminated and reviewed by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there prior to the Stockholders Meeting; (iv) if required by Law; or (v) if the Company has been provided a Company written notice to Parent and Merger Sub pursuant to Section 6.2(c) that it intends to make a Change of Recommendation made in accordance connection with a Superior Proposal or take action pursuant to Section 6.38.3(a) with respect to a Superior Proposal and the notice period contemplated by Section 6.2(c) with respect to such notice has not been reached. Subject to Section 6.2, the Parties agree Board of Directors of the Company shall include the Company Recommendation in the Proxy Statement and shall take all reasonable lawful action to cooperate and use their reasonable best efforts to defend against any efforts by any of solicit proxies from the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders favor of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The As promptly as practicable following the date hereof and the date on which the SEC shall clear (whether orally or in writing) the Proxy Statement/Prospectus and, if required by the SEC as a condition to the mailing of the Proxy Statement/Prospectus, the Company Registration Statement shall have been declared effective, the Company shall take all action necessary in accordance with applicable Laws and call a special meeting of its stockholders (the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the “Company Stockholders Meeting, ”) to be held as promptly as reasonably practicable following for the clearance purpose of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC voting upon (and in any event will use reasonable best efforts to convene such meeting within forty-five (45i) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts (ii) the amendment of the Company’s certificate of incorporation to obtain increase the number of authorized shares of Company Stockholder Approval Common Stock in connection with the issuance of the Aggregate Merger Consideration and submit (iii) the proposal issuance of shares of Company Common Stock pursuant to adopt this the Merger. This Agreement shall be submitted for adoption to the stockholders of the Company at the Company Stockholders Meetingsuch special meeting. The Company shall ensure that all proxies solicited deliver, or cause to be delivered, to the Company’s stockholders the Proxy Statement/Prospectus in definitive form in connection with the Company Stockholders Meeting are solicited at the time and in compliance with any the manner provided by the applicable Laws. Notwithstanding anything to provisions of the contrary contained in this AgreementDGCL, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to Exchange Act and the Company’s stockholders or (B) if, as certificate of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting incorporation and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, bylaws and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at conduct the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders solicitation of proxies in connection therewith in compliance with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption such statutes, certificate of this Agreement or the consummation of the Transactions) incorporation and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meetingbylaws.
(b) Without limiting the generality The Board of Directors of the foregoingCompany shall recommend that the Company’s stockholders vote in favor of the items in Section 7.4(a)(i)-(iii) (the “Company Board Recommendation”) and shall not withdraw, unless this Agreement shall have been terminated pursuant modify or qualify or publicly propose to Article VIIIwithdraw, modify or qualify, in any manner adverse to Verizon, the Company agrees Board Recommendation, including approving or recommending a Company Acquisition Proposal or a Company Superior Proposal or any other alternative course of action (any such action, a “Change of Board Recommendation”); provided that its obligations the Board of Directors of the Company may make a Change of Board Recommendation pursuant to calland in conformity with Section 7.11(c). For the avoidance of doubt, give notice of, convene the obligation of the Company to call and hold the Company Stockholders Stockholder Meeting pursuant to this for the purpose of voting upon the items in Section 6.5 7.4(a)(i)-(iii) shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening EventBoard Recommendation.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall Unless Parent and Sub are required to take all action necessary in accordance with applicable Laws and to effect the Organizational Documents of the Company Merger pursuant to duly give notice ofSection 2.7, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance purchase of Shares pursuant to the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3Offer, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to will duly call, give notice of, convene and hold a meeting of stockholders (the "Stockholder Meeting") for the purpose of considering the adoption of this Agreement and at such meeting call for a vote and cause proxies to be voted in respect of the adoption of this Agreement. The Stockholder Meeting shall be held as soon as reasonably practicable following the purchase of Shares pursuant to the Offer, and (except to the extent that the Special Committee or Board of Directors of the Company, after consultation with its independent legal counsel, determines in good faith that such action is inconsistent with its fiduciary duties to the Company's stockholders under applicable law) the Company Stockholders will, through its Board of Directors, recommend to its stockholders the adoption of this Agreement, and shall not withdraw or modify such recommendation. The record date for the Stockholder Meeting shall be a date subsequent to the date Parent or Sub becomes a record holder of Shares purchased pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation Offer.
(b) Unless Parent and its obligations Sub are required to take action to effect the Merger pursuant to this Section 6.5 2.7, the Company shall, at Parent's request, as soon as reasonably practicable following the purchase of Shares pursuant to the Offer, prepare and file a preliminary Proxy Statement with the SEC and use its reasonable best efforts to respond to any comments of the SEC or its staff and to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after responding to all such comments to the satisfaction of the staff of the SEC. Parent shall not be affected by the commencement, announcement, disclosure, or communication furnish to the Company such information concerning itself and Sub as may reasonably be requested by the Company in connection with the Proxy Statement. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent with copies of all correspondence between the Company Competing Proposal or any of its representatives, on the one hand, and the SEC or its staff, on the other proposal (includinghand, as applicable, a Company Superior Proposal) with respect to the Proxy Statement or the occurrence Merger. If at any time prior to the Stockholder Meeting there shall occur any event that should be set forth in an amendment or disclosure supplement to the Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects. Parent shall cooperate with the Company in the preparation of the Proxy Statement or any amendment or supplement thereto, including the supply of any Company Intervening Eventinformation required to be included in the Proxy Statement regarding Parent or Sub.
(c) Immediately after Parent agrees to cause all Shares purchased pursuant to the execution of this AgreementOffer and all other Shares beneficially owned by VAC, Parent shall duly adopt this Agreement or any Subsidiary of VAC to be voted in its capacity as favor of adoption of the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Kenetech Corp)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents Company, acting through its Board of the Company to duly give notice ofDirectors, convene and hold (in person or virtuallyshall, in accordance with applicable Law) the Company Stockholders Meetinglaw and its certificate of incorporation and bylaws, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to duly call, give notice of, convene and hold a special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following the clearance by the SEC of the Proxy Statement for the purpose of considering and voting upon the approval and adoption of this Agreement and the approval of the Merger and such other matters as may be necessary to effectuate the transactions contemplated hereby. The Company’s Board of Directors shall (i) recommend to the stockholders of the Company the approval and adoption of this Agreement and the approval of the Merger, (ii) include in the Proxy Statement its recommendation that the stockholders of the Company vote in favor of the approval and adoption of this Agreement and the approval of the Merger, (iii) use commercially reasonable efforts to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, except as permitted in paragraph (c) below.
(b) As soon as reasonably practicable following the execution of this Agreement and in connection with the Stockholders Meeting pursuant Meeting, the Company shall (i) promptly prepare and file with the SEC, use commercially reasonable efforts to this Section 6.5 shall not be affected have cleared by the making SEC and thereafter mail to its stockholders as promptly as practicable the Proxy Statement and all other proxy materials required in connection with such meeting, (ii) notify Parent of a the receipt of any comments of the SEC with respect to the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to Parent copies of all correspondence between the Company Change or any representative of Recommendation the Company and the SEC and (iii) shall give Parent and its obligations pursuant counsel the opportunity to this Section 6.5 review the Proxy Statement prior to its being filed with the SEC and shall not be affected by give Parent and its counsel the commencement, announcement, disclosureopportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or communication to sent to, the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening EventSEC.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt Nothing in this Agreement shall prevent the Board of Directors of the Company from withholding, withdrawing, amending or modifying its recommendation in its capacity favor of the Merger if (i) a Superior Offer (as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver defined below) is made to the Company evidence and is not withdrawn, (ii) the Company shall have provided written notice to Parent (a “Notice of Superior Offer”) advising Parent that the Company has received a Superior Offer, specifying all of the material terms and conditions of such Superior Offer and identifying the person or entity making such Superior Offer, (iii) the Board of Directors of the Company reasonably concludes, after consultation with its vote outside counsel, that, in light of such Superior Offer, the withholding, withdrawal, amendment or action by written consent so adopting modification of such recommendation is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company’s stockholders under applicable law, and (iv) the Company shall not have violated any of the restrictions set forth in Section 5.4 or this AgreementSection 5.1. The Company shall provide Parent with at least three business days prior notice (or such lesser prior notice as is provided to the members of the Company’s Board of Directors but in no event less than twenty-four hours) of any meeting of the Company’s Board of Directors at which the Company’s Board of Directors is reasonably expected to consider any Acquisition Proposal (as defined in Section 5.4) to determine whether such Acquisition Proposal is a Superior Offer. Nothing contained in this Section 5.1 shall limit the Company’s obligation to hold and convene the Stockholders Meeting (regardless of whether the recommendation of the Board of Directors of the Company shall have been withdrawn, amended or modified).
Appears in 1 contract
Stockholders Meeting. (a) The Promptly following the Initial Closing Date, the Company shall take all action necessary in accordance with applicable Laws to call a meeting of its stockholders (the “Stockholders Meeting”) for the purpose of seeking approval of the Company’s stockholders for the issuance of the Call Shares, the Call Exercise Warrants, the Second Closing Warrants, the Aggregate Incremental Warrant Shares and the Organizational Documents of Warrant Shares issuable upon exercise or otherwise pursuant to the Second Closing Warrants (the "Proposal”). In connection therewith, no later than twenty-one (21) calendar days after the Initial Closing Date, the Company shall prepare and file with the SEC a proxy statement for the Stockholders Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”). The Company shall use its reasonable Best Efforts to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of cause the Proxy Statement by the SEC and the Registration Statement is declared effective to be cleared by the SEC (“SEC Clearance”) and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement mailed to the stockholders of the Company at the Company Stockholders Meetingas promptly as practicable after filing. The Company shall ensure provide the Call Investors and their counsel with copies of any written comments or correspondence, and shall inform them of any oral comments or discussions, that all proxies solicited in connection the Company or its counsel may receive or have from time to time with the Company Stockholders Meeting are solicited in compliance SEC or its staff with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment respect to the Proxy Statement is provided to the Company’s stockholders or (B) ifpromptly after such discussions, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor receipt of such comments or other Representativecorrespondence, and any written or oral responses thereto. The Company shall otherwise keep Parent reasonably informed regarding respond promptly to any comments made by the status of the solicitation and any material oral or written communications from or SEC with respect to the Company’s stockholders with respect theretoProxy Statement. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3The Stockholders Meeting shall occur not later than January 31, 2009 (the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any “Stockholders Meeting Deadline”); provided however, that if, notwithstanding the exercise of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote atreasonable Best Efforts, the Company Stockholders Meetingis unable to obtain SEC Clearance of the Proxy Statement by January 1, 2009, the Company Stockholders Meeting Deadline shall not change such record date or establish a different record date for be automatically extended to February 28, 2009. Each Investor shall promptly furnish in writing to the Company Stockholders Meeting without such information relating to such Investor and its investment in the prior written consent Company as the Company may reasonably request for inclusion in the Proxy Statement. The Company will comply with Section 14(a) of Parent (which consent shall not the Exchange Act and the rules promulgated thereunder in relation to any Proxy Statement to be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable sent to the named executive officers stockholders of the Company in connection with the Merger Stockholders Meeting, and matters the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of procedurethe Stockholders Meeting, including contain any adjournment proposaluntrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting any event relating to the Company or any of its affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the Exchange Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal (the “Company Board Recommendation”) and shall take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall propose not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to be acted on by the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with applicable law and the provisions of its certificate of incorporation and bylaws, (i) take all action necessary to convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, to consider and vote upon the approval of the Proposal and (ii) submit the Proposal at the Stockholders Meeting to the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Eventfor their approval.
(c) Immediately after Each Investor agrees that it shall not vote any shares of Common Stock held by such Investor against the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as Proposal at the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementStockholders Meeting.
Appears in 1 contract
Sources: Securities Purchase Agreement (MAKO Surgical Corp.)
Stockholders Meeting. Seller shall, as promptly as reasonably practicable after the date of this Agreement, establish a record date (awhich date will be as promptly as reasonably practicable following the date of this Agreement) The Company shall and, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Laws Law, the rules of The NASDAQ Global Select Market and the Organizational Documents organizational documents of Seller to duly call, give notice of (which notice shall include a separate and distinct proposal (not bundled with any proposal relating to the adoption by the stockholders of Seller of any LicenseCo Agreement or approval of any LicenseCo Sale) for the consideration and vote of the Company stockholders of Seller relating to duly give notice ofthe adoption of this Agreement and each of the other Transaction Agreements and approval of the Transactions), convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held a meeting of its stockholders as promptly as reasonably practicable following after the clearance date of this Agreement (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and board of directors of Seller to make an Adverse Recommendation Change in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance accordance with Section 6.35.5(c), the Company Board board of directors of Seller shall recommend that make the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of Seller Recommendation with respect to the adoption of this Agreement, use its reasonable best efforts to obtain Agreement and the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders approval of the Company at Transactions, including without limitation the Company Stockholders Meeting. The Company Patent Sale, and shall ensure that all proxies solicited include such recommendation in connection with the Company Stockholders Meeting are solicited in compliance with any applicable LawsProxy Statement. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to Seller may adjourn or postpone the Company Stockholders Stockholders’ Meeting (Ai) to the extent after consultation with Patent Purchaser, as necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the CompanySeller’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting or (Bii) ifafter consultation with Patent Purchaser, if as of the time for which the Company Stockholders Stockholders’ Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock Seller’s common stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder ApprovalStockholders’ Meeting; provided, however, that Seller shall in each case use commercially reasonable efforts to hold the Stockholders’ Meeting no later than fifteen (x15) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after days following the date for which the meeting Stockholders’ Meeting was previously originally scheduled except (as may be required by applicable Law; (y) set forth in the Company Stockholders Proxy Statement). In the event that the date of the Stockholders’ Meeting shall not be as originally scheduled is adjourned or postponed pursuant to a date on this Section 5.3 or after two (2) Business Days prior otherwise delayed, Seller agrees that in consultation with Patent Purchaser, Seller shall use its reasonable best efforts to the Outside Date; and (z) no implement such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall such delay in such a way that Seller does not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different new record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheldStockholders’ Meeting, conditioned as so adjourned, postponed or delayed). Without the prior written consent of Parent or , except as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents If approval of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve is required under the DGCL in order to consummate the Merger:
(a) As promptly as practicable following the Acceptance Time and adopt the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement at Agreement, if applicable, the Company Stockholders shall prepare and file as promptly as practicable with the SEC a proxy or information statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement shall include before it is filed with the SEC and the Company Board Recommendationshall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel with the intention that the Proxy Statement be in a form ready to print and mail to the stockholders of the Company as promptly as practicable following the Acceptance Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable. Parent and Purchaser will provide to the Company any information with respect to Parent and Purchaser and their respective officers, directors, Affiliates and agents required to be provided in the Proxy Statement under applicable Laws or as reasonably requested by the Company. The Company shall solicit from include in the Proxy Statement the recommendation of the Company Board of Directors that stockholders of the Company vote in favor of the adoption of this Agreement in accordance with the DGCL. The Company shall use its reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly to any comments made by the SEC or its staff with respect to the Proxy Statement. The Company shall provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses before they are submitted to the SEC or its staff and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law, and the Company further agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement as provided in Section 1.11(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Exchange Act or the SEC (or its staff).
(b) The Company, acting through the Company Board of Directors, shall, in accordance with and subject to the requirements of applicable Law:
(i) (A) as promptly as practicable following the Acceptance Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, duly set a record date for, call and give notice of a special meeting of the Company’s stockholders (the “Special Meeting”) for the purpose of considering and taking action upon this Agreement (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as practicable following the Acceptance Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, convene and hold the Special Meeting;
(ii) cause the definitive Proxy Statement to be mailed to its stockholders; and
(iii) use its reasonable best efforts to (A) solicit from its stockholders proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval Agreement and submit the proposal to adopt this Agreement to the (B) secure any approval of stockholders of the Company at that is required by the Company Stockholders Meeting. The Company DGCL and any other applicable Law to effect the Merger.
(c) At the Special Meeting or any postponement or adjournment thereof, Parent shall ensure that vote, or cause to be voted, all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduledShares then owned by it, there are insufficient shares of Company Common Stock represented (either in person Purchaser or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, their respective Subsidiaries in consultation with Parent, shall fix a record date for determining the stockholders favor of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid and to deliver or become payable to the named executive officers of the Company in connection with the Merger and matters of procedureprovide, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole a stockholder of Merger Sub Inc. in accordance with the Company, any other approvals that are required by the DGCL and any other applicable Law and to effect the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementMerger.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents Subject to any termination of the Company this Agreement pursuant to duly give notice ofArticle VIII, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of Agreement Date, the Company shall prepare and file with the Securities and Exchange Commission (the “SEC”) a preliminary proxy or information statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement by before it is filed with the SEC and the Registration Statement is declared effective Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the SEC (Parent, Purchaser and in any event will use reasonable best efforts their counsel. Subject to convene such meeting within forty-five (45) days thereofSection 5.3(c). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company shall include in the Proxy Statement the recommendation of the Company Board shall recommend of Directors that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies vote in favor of the adoption of this Agreement, Agreement in accordance with the DGCL. The Company and Parent shall use its their reasonable best efforts to obtain and furnish the Company Stockholder Approval information required to be included by the SEC in the Proxy Statement and submit the proposal Company, after consultation with Purchaser, shall respond promptly to adopt this Agreement any comments made by the SEC with respect to the stockholders of the Company at the Company Stockholders MeetingProxy Statement. The Company shall ensure provide Parent and its counsel with copies of any written comments, and shall use reasonable efforts to inform them of any oral comments, that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance or its counsel may receive from time to time from the SEC or its staff with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment respect to the Proxy Statement is provided to promptly after the Company’s stockholders receipt of such comments, and any written or (B) iforal responses thereto. Parent, as of the time for which Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses and the Company Stockholders Meeting is scheduledshall give due consideration to all reasonable additions, there are insufficient shares of Company Common Stock represented (either in person deletions or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested changes suggested thereto by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, Purchaser and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtainedcounsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in consultation the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable law and, the Company further agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed with Parentthe SEC and, shall fix if any such correction is made following the mailing of the Proxy Statement as provided in Section 1.6(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or the SEC (or its staff).
(b) Subject to any termination of this Agreement pursuant to Article VIII, the Company, acting through the Company Board of Directors, shall, in accordance with and subject to the requirements of applicable law:
(i) (A) as promptly as practicable following the Agreement Date duly set a record date for determining for, call and give notice of a special meeting of its stockholders (the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders “Special Meeting, the Company shall not change such record date or establish a different record date ”) for the Company Stockholders Meeting without sole purpose of obtaining the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on approval by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with of the adoption of this Agreement or in accordance with the consummation of DGCL (with the Transactions) record date and meeting date set in consultation with Purchaser), and (iiB) as promptly as practicable following the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice ofDate, convene and hold the Special Meeting;
(ii) cause the definitive Proxy Statement to be mailed to its stockholders; and
(iii) use its commercially reasonable efforts to secure any approval of stockholders of the Company Stockholders Meeting pursuant that is required by the DGCL to this effect the Merger (it being understood and agreed that a Company Change in Recommendation in accordance with Section 6.5 5.3 shall not be affected by the making a violation of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event1.7(b)).
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of Company, acting through the Company to duly give notice ofBoard, convene and hold (in person or virtuallyshall, in accordance with applicable Law) the Company Stockholders Meetinglaw and its certificate of incorporation and bylaws, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to duly call, give notice of, convene and hold a special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following the clearance by the SEC of the Proxy Statement for the purpose of considering and voting upon the approval and adoption of this Agreement, the Merger and such other matters as may be necessary to effectuate the Transactions. The Company Board, based upon the recommendation of the Special Committee, shall (i) recommend to the stockholders of the Company Stockholders Meeting pursuant the approval and adoption of this Agreement and the Merger, (ii) include in the Proxy Statement such favorable recommendation of the Company Board that the stockholders of the Company vote in favor of the approval and adoption of this Agreement and the Merger, (iii) use its reasonable best efforts to this Section 6.5 shall solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, in each case, unless the Company Board, after consultation with outside legal counsel, determines in good faith that failing to take such action would be affected by inconsistent with the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication Board’s fiduciary duties to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening EventCompany’s stockholders under applicable law.
(cb) Immediately after As soon as reasonably practicable following the execution of this AgreementAgreement and in connection with the Stockholders Meeting, Parent the Company shall duly adopt this Agreement (i) promptly prepare and file with the SEC, use its reasonable best efforts to have cleared by the SEC and thereafter mail to its stockholders as promptly as practicable the Proxy Statement and all other proxy materials required in its capacity as the sole stockholder of connection with such meeting, (ii) notify Merger Sub Inc. in accordance and Melita of the receipt of any comments of the SEC with applicable Law respect to the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to Merger Sub and Melita copies of all correspondence between the Company or any representative of the Company and the Organizational Documents of SEC and (iii) shall give Merger Sub Inc. and deliver Melita and their counsel the opportunity to review the Proxy Statement prior to its being filed with the SEC and shall give Merger Sub and Melita and their counsel the opportunity to review all amendments and supplements to the Company evidence of its vote Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or action by written consent so adopting this Agreementsent to, the SEC.
Appears in 1 contract
Stockholders Meeting. (ai) The Company shall duly call, give notice of, convene and hold a meeting of its stockholders (the “Company Stockholders Meeting”) to be held as promptly as practicable following the Proxy Statement Clearance Date; provided, that without the prior written consent of Parent, the Company Stockholders Meeting shall not be held later than forty-five (45) days after the date of the Proxy Statement Clearance Date. The Company may not adjourn, postpone or call a recess of the Company Stockholders Meeting without the prior written consent of Parent; provided, that if, on a date for which the Company Stockholders’ Meeting is scheduled, the Company has not received proxies representing a sufficient number of votes to obtain the Stockholder Approval or to obtain a quorum for such meeting, the Company shall, at Parent’s request, postpone or adjourn the Company Stockholders’ Meeting solely for the purpose of and for the minimum time reasonably necessary to obtain the Stockholder Approval.
(ii) As promptly as practicable after the date of this Agreement, the Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3DGCL, the Company Board shall recommend that the stockholders Certificate of Incorporation, the Company approve Bylaws and adopt this Agreement the NASDAQ Stock Market Rules to establish a record date for purposes of determining stockholders entitled to notice of and vote at the Company Stockholders Meeting (the “Record Date”) and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders to commence a “broker search” pursuant to Section 14a-13 of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts Exchange Act with respect to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited consult with Parent in connection with good faith regarding the foregoing. Once the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to has established the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Record Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date Record Date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which such consent shall not to be unreasonably withheld, conditioned or delayed).
(iii) The Company’s obligation to establish a record date for, call, give notice of, convene and hold the Company Stockholders’ Meeting pursuant to this Section 6.2(d) shall not be limited, or otherwise affected, by the commencement, disclosure, announcement or submission to the Company of any Acquisition Proposal or by the making of a Company Adverse Recommendation Change or an Intervening Event Change of Recommendation, and notwithstanding any Company Adverse Recommendation Change or Intervening Event Change of Recommendation, unless this Agreement is validly terminated pursuant to, and in accordance with Article VIII, this Agreement shall be submitted to the Company Stockholders for the purpose of obtaining the Stockholder Approval. Unless there has been a Company Adverse Recommendation Change or an Intervening Event Change of Recommendation specifically permitted by Section 6.4(d), the Company shall use its reasonable best efforts to solicit the Stockholder Approval. Upon the request of Parent, the Company shall promptly advise Parent as to the aggregate tally of the proxies received by the Company or its Representatives with respect to the Stockholder Approval. Without the prior written consent of Parent or as required by applicable LawParent, (i) the adoption of this Agreement and, if applicable, the advisory vote required by Rule 14a-21(c) under the Exchange Act in connection therewith, shall be the only matter matters (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and procedural matters of procedure, including any adjournment proposalrelated thereto) that which the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Company, acting through the Company Board, shall take all action necessary actions in accordance with applicable Laws law, its Certificate of Incorporation and By-laws and the Organizational Documents rules of the Company The Nasdaq Stock Market to promptly and duly call, give notice of, convene and hold (in person or virtually, as promptly as practicable the Company Meeting for the purpose of considering and voting upon the Company Voting Proposal. Unless this Agreement is terminated in accordance with applicable LawArticle VIII, the obligation of the Company to convene and hold the Company Meeting will not be limited or otherwise affected by a Change in Recommendation. Subject to Section 6.1, (i) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event Board will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the adoption of the Company Stockholders MeetingVoting Proposal include such recommendation in the Proxy Statement and (ii) the Company Board shall not withhold, withdraw or modify, or publicly propose or resolve to withhold, withdraw or modify in a manner adverse to the Buyer, the recommendation of the Company Board that the Company's stockholders vote in favor of the Company Voting Proposal. The Subject to Section 6.1 (but without affecting in any manner the Company's obligations pursuant to Section 6.2), the Company shall ensure take all action that all is both reasonable and lawful to solicit from its stockholders proxies solicited in connection with favor of the Company Stockholders Meeting are solicited in compliance with any applicable LawsVoting Proposal and shall take all other action necessary or advisable to secure the vote or consent of the stockholders of the Company required by the rules of The Nasdaq Stock Market or the DGCL to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to Company, after consultation with the Buyer, may adjourn or postpone the Company Stockholders Meeting (A) Meeting, but only to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s 's stockholders or (B) ifor, if as of the time for which the Company Stockholders Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Netegrity Inc)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws Unless Parent and the Organizational Documents Merger Sub own 90% or more of the outstanding Shares after purchasing Shares in the Offer, the Company to duly give notice of, convene and hold (in person or virtuallywill take, in accordance with applicable Law) Law and its certificate of incorporation and bylaws, all action necessary to convene a meeting of holders of Shares (the Company “Stockholders Meeting, to be held ”) as promptly as reasonably practicable following after the clearance of the Proxy Statement by the SEC Purchase Date to consider and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of vote upon the adoption of this AgreementAgreement and, use its reasonable best efforts to obtain provided that the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company Purchase Date has occurred, shall ensure that all proxies solicited in connection not postpone or adjourn such meeting except that, after consultation with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this AgreementParent, the Company (i) shall be required to may adjourn or postpone the Company Stockholders Meeting (A) to the extent legally necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) ifor, if as of the time for which the Company Stockholders Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which Stockholders Meeting. After the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the PartiesPurchase Date, the Company Stockholders Meeting shall not be adjourned will prepare and distribute as promptly as practicable any such required supplement or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior amendment to the Outside Date; Proxy Statement and (z) no following any such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for take all action necessary to reconvene the Company Stockholders Meeting without as promptly as practicable after such adjournment or postponement. After the prior written consent of Parent (which consent shall not be unreasonably withheldPurchase Date, conditioned except as otherwise provided in Section 6.2 or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) extent that the Company shall propose Board determines in good faith (after receiving legal advice from outside legal counsel to the Company) that to do so would reasonably be acted on by expected to constitute a breach of its fiduciary duties to the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIIICompany’s stockholders, the Company agrees that its obligations to callBoard shall recommend such adoption. Parent, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. and their respective affiliates shall vote all of their Shares in favor of the Merger. If Parent and Merger Sub own 90% or more of the outstanding Shares after purchasing Shares in the Offer, the parties shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable thereafter without a stockholders meeting in accordance with applicable Law and Section 253 of the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementDGCL.
Appears in 1 contract
Sources: Merger Agreement (Genlyte Group Inc)
Stockholders Meeting. (a) The Subject to the other provisions of this Agreement, the Company shall (i) as promptly as reasonably practicable and in any event not later than ten (10) Business Days after the SEC confirms that it has no further comments on, or otherwise clears, the Schedule 13E-3 and the Proxy Statement, take all action necessary in accordance with applicable Laws required under the DGCL and its Certificate of Incorporation and the Organizational Documents of the Company Bylaws to duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as a meeting of its stockholders promptly as reasonably practicable following the clearance mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (the “Stockholders’ Meeting”), with the record date and meeting date of the Stockholders’ Meeting to be determined by the SEC Company after good faith consultation with Parent, and (ii) subject to a Change in Company Recommendation in accordance with Section 6.2, (x) recommend to the Registration Statement is declared effective by stockholders that they approve and adopt this Agreement, and shall include such recommendation in the SEC Proxy Statement, (and in any event will y) use its reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from its stockholders of the Company proxies in favor of the adoption of this AgreementAgreement and approval of the Transactions, and (z) take all other actions necessary or advisable to secure the Stockholder Approval. Upon prior written request of Parent, the Company shall use its commercially reasonable best efforts to obtain advise Parent on a current basis prior to the date of the Stockholders’ Meeting, as to the aggregate tally of proxies received by the Company Stockholder Approval and submit the proposal to adopt this Agreement with respect to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable LawsStockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to may, and Parent may request in writing that the Company, adjourn or postpone the Company Stockholders Meeting (A) Stockholders’ Meeting, if and to the extent the Special Committee determines in good faith (i) such adjournment or postponement is necessary or advisable to ensure that any legally required supplement or amendment to the Proxy Statement that is required by applicable Law is timely provided to the Company’s stockholders or stockholders, (Bii) if, as of if at the time for which the Company Stockholders Stockholders’ Meeting is scheduled, proceeds to business there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditionedStockholders’ Meeting, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating (iii) additional time is required to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status solicit proxies in favor of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. The REIT, acting through the REIT Board (a) The Company shall or a committee thereof), shall, as promptly as practicable following confirmation by the SEC that the SEC has no further comments on the Proxy Statement or that the REIT may commence mailing the Proxy Statement, take all action necessary in accordance with applicable Laws required under Applicable Law and the REIT’s Organizational Documents and the applicable requirements of the Company New York Stock Exchange necessary to promptly and duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following a Stockholders Meeting; provided that the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene REIT may postpone or adjourn such meeting within forty-five solely (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (Aa) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or by Applicable Law, (Bb) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent Seller (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (ic) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to allow reasonable additional time to solicit additional proxies to the named executive officers extent the REIT reasonably believes necessary in order to obtain the Requisite Stockholder Vote or (d) in the absence of a quorum. The REIT Board (or the Special Committee) shall recommend that the holders of REIT Stock vote in favor of the Company Agreement and the transactions contemplated hereunder (the “Agreement Proposal”), and the REIT shall use its reasonable efforts to solicit from the holders of REIT Stock proxies in connection favor of the Agreement Proposal. Notwithstanding the foregoing, the REIT Board may, without liability hereunder, decline to make or may withdraw, modify or change its recommendation at any time prior to obtaining the Requisite Stockholder Vote if the Special Committee determines in good faith (after consultation with the Merger and matters of procedure, including any adjournment proposalits outside counsel) that the Company shall propose failure to take such action would be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with its duties to the adoption of this Agreement REIT or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the REIT’s stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meetingunder applicable Law.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with If requested by Parent and required by applicable Laws Law or the applicable rules and the Organizational Documents regulations of the Nasdaq SmallCap Market in order to consummate the Merger, the Company, acting through the Company to duly give notice ofBoard, convene and hold (in person or virtuallyshall, in accordance with applicable Law) , the Company Stockholders Meeting, to be held as promptly as reasonably practicable following Company's certificate of incorporation and bylaws and the clearance applicable rules and regulations of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company Nasdaq SmallCap Market:
(i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to duly call, give notice of, convene and hold a special meeting of its stockholders (the "Special Meeting") as soon as practicable following the acceptance for payment of and payment for Shares by the Purchaser pursuant to the Offer for the purpose of considering and taking action upon this Agreement;
(ii) prepare and file with the SEC a preliminary proxy statement relating to this Agreement, and use its commercially reasonable efforts (x) to obtain and furnish the information required to be included by the SEC in the Proxy Statement (as hereinafter defined) and, after consultation with Parent, to respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the "Proxy Statement") to be mailed to its stockholders and (y) to obtain the necessary approvals of the Merger and this Agreement by its stockholders;
(iii) subject to Section 1.2(a), include in the Proxy Statement the recommendation of the Company Stockholders Meeting pursuant Board that stockholders of the Company vote in favor of the approval of this Agreement; and
(iv) include in the Proxy Statement the opinion of Financial Advisor referred to this in Section 6.5 1.2(a).
(b) Company shall not be affected notify Parent of the receipt of any comments of the SEC with respect to the Proxy Statement and of any requests by the making SEC for any amendment or supplement thereto or for additional information and shall provide to Parent promptly copies of a all correspondence between the Company Change or any representative of Recommendation the Company and the SEC with respect thereto. The Company shall give Parent and its obligations pursuant counsel the opportunity to this Section 6.5 review the Proxy Statement, including all amendments and supplements thereto, prior to its being filed with the SEC and shall not be affected by give Parent and its counsel the commencementopportunity to review all responses to, announcement, disclosurerequests for additional information and replies to comments prior to their being filed with, or communication to sent to, the Company of any Company Competing Proposal or other proposal (includingSEC, as applicableand shall include in the Proxy Statement and all such amendments, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Eventsupplements, responses and requests all comments reasonably proposed by Parent.
(c) Immediately after Parent agrees that it will vote, or cause to be voted, all of the execution Shares then owned by it, the Purchaser or any of its other subsidiaries in favor of the approval of the Merger and of this Agreement.
(d) If, following expiration of the Offer and satisfaction or waiver of all of the Tender Offer Conditions, applicable Law or the applicable rules and regulations of the Nasdaq SmallCap Market require a vote of the stockholders of the Company in order to consummate the Merger, Parent and Purchaser may, in their sole discretion, in lieu of having the Company call a special meeting of the stockholders as contemplated above, elect to approve the Merger by written consent without a meeting of the stockholders, as permitted by the certificate of incorporation and bylaws of the Company. If Parent and Purchaser elect to approve the Merger by written consent, the Company shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law take all actions necessary to permit Parent and the Organizational Documents of Merger Sub Inc. and deliver Purchaser to the Company evidence of its vote or take such action by written consent so adopting this Agreementconsent, including without limitation making and assisting in such filings with the SEC, and preparing and mailing an information statement and such other materials, as may be required under the federal securities laws and the GCL.
Appears in 1 contract
Sources: Merger Agreement (Danaher Corp /De/)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and Seller shall, as promptly as practicable following the Organizational Documents date of the Company to this Agreement, establish a record date for, duly call, give notice of, convene and hold a meeting of its holders of Common Stock for the purpose of obtaining the Stockholder Approval (in person or virtually, in accordance with applicable Law) the Company Stockholders “Stockholders’ Meeting, to ”). The Stockholders’ Meeting shall be held as promptly as reasonably commercially practicable following the clearance of date on which the Proxy Statement is cleared by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable LawsSEC. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to Seller may adjourn or postpone the Company Stockholders Stockholders’ Meeting after consultation with Purchaser and with Purchaser’s consent (Asuch consent not to be unreasonably withheld or delayed) (i) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders of Seller within a reasonable amount of time in advance of the Stockholders’ Meeting or (Bii) if, if as of the time for which the Company Stockholders Stockholders’ Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior Stockholders’ Meeting. Notwithstanding anything to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made contrary in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoingAgreement, unless this Agreement shall have has been terminated pursuant to Article VIIIVII, if the Company agrees that Board shall have withheld, withdrawn, qualified or modified the Board Recommendation, or issued an Adverse Recommendation Change, Seller shall nonetheless submit this Agreement to its obligations stockholders at the Stockholders’ Meeting. With Purchaser’s consent (such consent not to callbe unreasonably withheld or delayed), give notice of, convene and hold Seller may also seek the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by affirmative vote of the making holders of a Company Change majority of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to outstanding shares of Seller’s Common Stock of the Company dissolution of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or Seller at the occurrence or disclosure of any Company Intervening EventStockholders’ Meeting.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (ai) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly call, give notice of, convene of and hold a meeting of its stockholders (in person or virtually, in accordance with applicable Law) the "Company Stockholders Meeting, to be held ") as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to date on which the Proxy Statement is provided to cleared by the Company’s stockholders or (B) if, as SEC for the purpose of obtaining the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and Stockholder Approval.
(ii) may adjourn or postpone the The Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to establish a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for purposes of determining the stockholders of the Company entitled to notice of or to and vote at the Company Stockholders Meeting without the written consent of Parent Stockholder Meeting.
(which consent shall not be unreasonably withheldiii) Subject to Section 6.4(d), conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, at the Company Stockholders Meeting, the Company shall, through the Company Board, make the Company Recommendation and, unless there has been a Company Adverse Recommendation Change, the Company shall not change such record date or establish a different record date take all reasonable lawful action to solicit the Stockholder Approval. Notwithstanding any Company Adverse Recommendation Change, unless this Agreement is validly terminated pursuant to, and in accordance with Article VIII, this Agreement shall be submitted to the Company's stockholders for the purpose of obtaining the Stockholder Approval. The Company Stockholders Meeting without shall, upon the prior written consent reasonable request of Parent, advise Parent (which consent shall not be unreasonably withheld, conditioned or delayed)as to the aggregate tally of the proxies received by the Company with respect to the Company Stockholder Approval. Without the prior written consent of Parent or as required by applicable LawParent, (i) the adoption of this Agreement and the transactions contemplated hereby (including the Merger) and, if required by SEC rules and regulations, the approval of any executive officer compensation paid or payable by the Company and relating to the transactions contemplated hereby, shall be the only matter matters (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedureprocedure matters, including any an adjournment proposal) that which the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (aThe Company, acting through the Company Board and in accordance with Section 6.1(c) The Company hereof, shall take all action necessary actions in accordance with applicable Laws law, its Certificate of Incorporation and By-laws and the Organizational Documents rules of the Company The Nasdaq Stock Market to promptly and duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following practicable, and in no event more than 40 Business Days from the clearance of date the SEC clears the Proxy Statement by or informs the SEC Company that it will not review the Proxy Statement, the Company Meeting for the purpose of considering and voting upon the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts Company Voting Proposal. Subject to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.36.1, the Company Board (a) shall recommend that adoption of the Company Voting Proposal by the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and include such recommendation in the Proxy Statement and (b) shall include not withhold, withdraw or modify, or publicly propose or resolve to withhold, withdraw or modify in a manner adverse to the Buyer, the recommendation of the Company Board Recommendation. The Company shall solicit from that the Company’s stockholders vote in favor of the Company Voting Proposal. Subject to Section 6.1, the Company shall take all action that is both reasonable and lawful to solicit from its stockholders proxies in favor of the adoption Company Voting Proposal and shall take all other action reasonably necessary or advisable to secure the vote or consent of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at required by the Company Stockholders Meeting. rules of The Company shall ensure that all proxies solicited in connection with Nasdaq Stock Market or the Company Stockholders Meeting are solicited in compliance with any applicable LawsDGCL to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company Company, after obtaining the Buyer’s written consent (i) which shall not be required to unreasonably withheld, conditioned or delayed), may adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement required by law is provided to the Company’s stockholders or (B) ifor, if as of the time for which the Company Stockholders Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Matrixone Inc)
Stockholders Meeting. (a) The Company shall take all action necessary will take, in accordance with applicable Laws Law and the Organizational Documents its certificate of the Company incorporation and by-laws, all action necessary to establish a record date for, duly call, give notice of, convene and hold a meeting of holders of Shares (in person or virtually, in accordance with applicable Law) the Company "Stockholders Meeting, to be held ") as promptly as reasonably practicable following after the clearance date that the SEC staff informs the Company that it has no further comments on the preliminary Proxy Statement, to consider and vote upon the adoption of this Agreement, and the Company shall conduct in a timely manner a "broker search" in accordance with Rule 14a-13 of the Exchange Act in connection therewith; provided that in no event shall the Company be required to hold the Stockholders Meeting prior to the fifth business day after the earlier of (x) the Cut-Off Date and (y) the first date from and after the Go-Shop Period End Date as of which no Person qualifies as an Excluded Person. Following the distribution of the Proxy Statement pursuant to Section 6.3, the date of the Stockholders Meeting may not be adjourned or postponed, except the Stockholder Meeting may be adjourned or postponed from time to time and at any time by the SEC Company (and the Registration Statement is declared effective shall be adjourned or postponed by the SEC Company at the reasonable request of Parent in circumstances described in clauses (b) or (d)): (a) with the consent of Parent (not to be unreasonably withheld, conditioned or delayed); (b) for the absence of a quorum; (c) as the Company Board or any duly constituted committee thereof determines in good faith is required by applicable Law, including in connection with the discharge of the fiduciary duties of the Company Board to the extent necessary to allow for the filing or distribution of any supplemental or amended disclosure with respect to the transactions contemplated by this Agreement which the Company Board has determined in good faith (after consultation with its outside legal counsel) is necessary under applicable Laws and in any event will use reasonable best efforts for such supplemental or amended disclosure to convene such meeting within forty-five be disseminated to and reviewed by the Company's stockholders prior to the Stockholders Meeting; or (45d) days thereof)to solicit additional proxies if the Company or Parent reasonably believes doing so may be necessary to obtain the Requisite Company Vote. Except where a Company Change of Recommendation has been made in compliance with Subject to Section 6.36.2 hereof, the Company Board shall recommend that the stockholders of the Company approve such adoption and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall use reasonable best efforts to take customary lawful actions to solicit from stockholders of the Company proxies in favor of the such adoption of this Agreement. For the avoidance of doubt, use its reasonable best efforts to obtain the extent the Company Stockholder Approval and Board makes a Change of Recommendation, the Company nevertheless shall continue to submit the proposal to adopt this Agreement to the stockholders of the Company for adoption at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver its terms prior to the Company evidence of its vote or action by written consent so adopting this AgreementStockholders Meeting.
Appears in 1 contract
Stockholders Meeting. (a) The Subject to the other provisions of this Agreement, the Company shall (i) as promptly as reasonably practicable and in any event no later than ten (10) Business Days after the SEC confirms that it has no further comments on, or otherwise clears, the Schedule 13E-3 and the Proxy Statement, take all action necessary in accordance with applicable Laws required under the NRS and its Articles of Incorporation and the Organizational Documents of the Company Bylaws to duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as a meeting of its stockholders promptly as reasonably practicable following the clearance mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (the “Stockholders’ Meeting”), with the record date and meeting date of the Stockholders’ Meeting to be determined by the SEC Company after good faith consultation with Parent, and (ii) subject to a Change in Company Recommendation in accordance with Section 6.2, (x) recommend to the Registration Statement is declared effective by stockholders that they approve and adopt this Agreement, and shall include such recommendation in the SEC Proxy Statement, (and in any event will y) use its reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from its stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts Agreement and approval of the Transactions and (z) take all other actions necessary or advisable to obtain secure the Company Stockholder Approval and submit Approval. Upon prior written request of Parent, the proposal Company shall use its commercially reasonable efforts to adopt this Agreement advise Parent on a current basis prior to the stockholders date of the Company at Stockholders’ Meeting, as to the aggregate tally of proxies received by the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with respect to the Company Stockholders Meeting are solicited in compliance with any applicable LawsStockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to may, and Parent may request in writing that the Company, adjourn or postpone the Company Stockholders Meeting (A) Stockholders’ Meeting, if and to the extent the Special Committee, determines in good faith (i) such adjournment or postponement is necessary to ensure that any legally required supplement or amendment to the Proxy Statement that is required by applicable Law is timely provided to the Company’s stockholders or stockholders, (Bii) if, as of if at the time for which the Company Stockholders Stockholders’ Meeting is scheduled, proceeds to business there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary or advisable to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditionedStockholders’ Meeting, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating (iii) additional time is required to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status solicit proxies in favor of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
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Stockholders Meeting. (a) It is currently contemplated by the Company that it may issue a significant number of shares of its Common Stock in other transactions or offerings between the date of this agreement and March 31, 2010. The number of shares of Common Stock issued in such transactions or offerings may be sufficiently great to abrogate any requirement under NASDAQ rules for stockholder approval of the Exchange. If by March 31, 2010, stockholder approval of the Exchange would still be required by applicable NASDAQ rules, the Company shall take all action necessary in accordance with applicable Laws hold a meeting of its stockholders (which may be its annual meeting or a special meeting) as promptly as practicable to seek approval of the Exchange and the Organizational Documents issuance of the Common Shares pursuant to this Agreement (the “Proposals”). The Board of Directors shall recommend to the Company’s stockholders that such stockholders vote in favor of the Proposals. In connection with such meeting, the Company shall prepare (and the Investor will provide information reasonably required by the Company to duly give notice of, convene be included therein) and hold file with the Securities and Exchange Commission (in person or virtually, in accordance with applicable Lawthe “SEC”) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendationpreliminary proxy statement. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain respond to any comments of the SEC or its staff thereon and to cause a definitive proxy statement related to such stockholders’ meeting or consent to be mailed to the Company’s stockholders, and the Company Stockholder Approval shall use its reasonable best efforts to solicit proxies for such stockholder approval of the Proposals. Each of the Investor and submit the proposal Company agrees promptly to adopt this Agreement correct any information provided by it or on its behalf for use in the proxy statement if and to the extent that such information shall have become false or misleading in any material respect.
(b) None of the information supplied by the Company for inclusion in any proxy statement in connection with any such stockholders meeting of the Company or consent will, at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection date it is filed with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this AgreementSEC, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided when first mailed to the Company’s stockholders and at the time of any stockholders meeting, and at the time of any amendment or (B) ifsupplement thereof, as contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the time for circumstances under which the Company Stockholders Meeting is scheduledthey are made, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meetingmisleading.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
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Stockholders Meeting. On or prior to the date of the Company’s 2018 Annual Meeting of Stockholders or, at either Purchaser’s option, any date prior thereto upon at least ninety (a90) The days’ prior written notice, the Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents hold a meeting of stockholders of the Company (the “Stockholder Meeting”) for the purpose of voting upon the approval of resolutions (the “Stockholder Resolutions”) with respect to duly give notice ofthe matters contemplated by the Stockholder Approval (as defined below) (the date such approval is obtained, convene and hold the “Stockholder Approval Date”), provided, however, nothing herein shall prevent the Company from postponing or adjourning the Stockholder Meeting if (in person i) there are insufficient shares of the Common Stock present or virtuallyrepresented by a proxy at the Stockholder Meeting to conduct business at the Stockholder Meeting, in accordance with applicable Law(ii) the Company Stockholders Meetingis required to postpone or adjourn the Stockholder Meeting by applicable law or a request from the Commission or its staff, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC or (and in any event will use reasonable best efforts to convene such meeting within forty-five (45iii) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend determines in good faith (after consultation with outside legal counsel) that it is necessary or appropriate to postpone or adjourn the Stockholder Meeting in order to give the stockholders of the Company approve and adopt this Agreement at sufficient time to evaluate any information or disclosure that the Company Stockholders Meeting and has sent to the Proxy Statement shall include stockholders or otherwise made available to the Company Board Recommendationstockholders by issuing a press release, filing materials with the SEC or otherwise. The Company shall solicit from the stockholders of the Company proxies in favor of the adoption Stockholder Resolutions in accordance with applicable law, and shall submit the Stockholder Resolutions for a vote of this Agreement, the Company’s stockholders at the Stockholder Meeting. The Company shall use its commercially reasonable best efforts to obtain secure the Company Stockholder Approval at the Stockholder Meeting. As used herein, “Stockholder Approval” means such approval as may be required by the applicable rules and submit regulations of the proposal to adopt this Agreement to Nasdaq Stock Market (or any successor entity) from the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything respect to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as anti-dilution provisions of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders MeetingWarrants.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
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Stockholders Meeting. (a) The Company shall take all action necessary will, as soon as reasonably practicable after the Proxy Statement is cleared by the SEC for mailing to the Company’s stockholders in accordance with applicable Laws and the Organizational Documents of the Company to Section 6.3(a), duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) a meeting of the holders of the Company Stockholders Shares (the “Company Stockholders’ Meeting, to be held as promptly as reasonably practicable following ”) for the clearance purpose of seeking the Company Requisite Vote. The record date of the Proxy Statement Company Stockholders’ Meeting shall be selected by the SEC Company after reasonable consultation with Parent. The Company, through the Company Board, shall recommend to holders of the Company Shares that they vote in favor of the Company Merger so that the Company may obtain the Company Requisite Vote (the “Company Recommendation”) and the Registration Statement is declared effective by the SEC (and in any event will Company shall use reasonable best efforts to convene such meeting within forty-five solicit the Company Requisite Vote (45) days thereofincluding by soliciting proxies from the Company’s stockholders). Except where a Company Change of Recommendation has been made , except in compliance with Section 6.3, each case to the extent that the Company Board shall recommend that the stockholders of the Company approve has effected an Adverse Recommendation Change, as permitted by and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendationdetermined in accordance with Section 6.6. The Company shall solicit from stockholders of keep Parent reasonably informed with respect to proxy solicitation results as reasonably requested by Parent. Unless this Agreement is terminated in accordance with its terms, the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and shall not submit the proposal to adopt this Agreement to the vote of its stockholders of the any Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable LawsAcquisition Proposal. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to may adjourn or postpone the Company Stockholders Stockholders’ Meeting after reasonable consultation with Parent (Aa) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders holders of Company Shares within a reasonable amount of time in advance of a vote on the Company Merger, (b) for the absence of a quorum or (Bc) if, as if additional time is reasonably required to solicit proxies in favor of the time for which approval of the Company Stockholders Meeting is scheduledMerger; provided, there are insufficient shares that, in the case of Company Common Stock represented this clause (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with c), without the written consent of Parent ifParent, as of the time for which in no event will the Company Stockholders Stockholders’ Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person as so postponed or by proxyadjourned) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to held on a date that is more than ten (10) Business Days 30 days after the date for which the meeting Company Stockholders’ Meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect theretooriginally scheduled. Unless there this Agreement has been a Company Change of Recommendation made terminated in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the obligation of the Company agrees that its obligations to duly call, give notice of, convene and hold the Company Stockholders Stockholders’ Meeting pursuant and mail the Proxy Statement (and any amendment or supplement thereto that may be required by Law) to this Section 6.5 shall the Company’s stockholders will not be affected by the making of a Company Change of an Adverse Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.Change.
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Stockholders Meeting. (a) The Subject to Section 5.2, the Company shall will take all action necessary actions in accordance with applicable Laws Law, the Certificate of Incorporation, the Bylaws and the Organizational Documents rules of the Company NYSE to duly call, give notice of, convene and hold a special meeting of the Company’s stockholders for the purpose of considering and taking action upon the adoption of this Agreement (in person including any adjournment or virtuallypostponement thereof, in accordance with applicable Lawthe “Stockholders’ Meeting”) the Company Stockholders Meeting, to be held as promptly soon as reasonably practicable following after the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendationdate hereof. The Company shall use its commercially reasonable efforts (including engaging a nationally recognized proxy solicitation firm) to solicit or cause to be solicited from the stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable LawsApproval. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to may adjourn or postpone the Company Stockholders Stockholders’ Meeting for up to 10 Business Days (Ai) to the extent required by applicable Law or if, after consultation with Parent, the Company determines such adjournment or postponement is necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the stockholders of the Company within a reasonable amount of time in advance of the Stockholders’ Meeting if such disclosure is determined by the Company in good faith after consultation with outside counsel to be required to be provided to the stockholders of the Company’s stockholders or , (Bii) if, if as of the time for which the Company Stockholders Stockholders’ Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduledStockholders’ Meeting, there are insufficient shares of Company Common Stock represented (either in person or by proxyiii) to solicit additional proxies if necessary to obtain the Company Stockholder Approval, (iv) if the Company has received a Company Superior Proposal and the Company Board or any duly authorized committee thereof determines in good faith, after consultation with is financial advisors and legal counsel, that additional time is required to assess such Company Superior Proposal in accordance with Section 5.2, or (v) if an Intervening Event has occurred and the Company Board or any duly authorized committee thereof determines in good faith, after consultation with its financial advisors and legal counsel, that additional time is required to assess such Intervening Event in accordance with Section 5.2; provided, however, that (x) that, unless otherwise agreed to by each of Parent and the PartiesCompany, the Company Stockholders Meeting shall not in no event may any adjournment or postponement be adjourned or postponed to a date that is more fewer than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) 15 Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant The Company will keep Parent reasonably informed with respect to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Eventproxy solicitation results.
(c) Immediately after the execution of Nothing in this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver Section 5.4 will be deemed to prevent the Company evidence of its vote or the Company Board or any duly authorized committee thereof from taking any action permitted by written consent so adopting this AgreementSection 5.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and If, after the Organizational Documents Acceptance Time, approval of the Stockholders is required under applicable Law to consummate the Merger, the Company to duly give notice ofand/or the Company Board, convene and hold (in person or virtuallyas applicable, shall, in accordance with and to the extent permitted by applicable Law:
(i) the Company Stockholders Meeting, to be held as promptly soon as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3Acceptance Time, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix establish a record date for determining the stockholders of the Company entitled to notice offor, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to duly call, give notice of, convene and hold a special meeting of the Stockholders (the “Stockholders Meeting”) for the purpose of considering and taking action upon this Agreement and approving the Merger and not postpone or adjourn the Stockholders Meeting unless required to comply with applicable Law;
(ii) as soon as practicable following the Acceptance Time, prepare and file with the SEC an information statement or preliminary proxy statement, as may be required by the Exchange Act, relating to the Merger and this Agreement (the “Meeting Statement”) and use reasonable best efforts to obtain and furnish the information required by the SEC to be included in such Meeting Statement and, after consultation with Parent, respond promptly to any comments made by the SEC to be included in such Meeting Statement and, subject to compliance with Federal Securities Laws, cause a notice of a special meeting and a definitive Meeting Statement to be mailed to the Stockholders at the earliest practicable time following the Acceptance Time; and
(iii) subject to Section 5.2, include in the Meeting Statement the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Board Recommendation and a copy of the Company Fairness Opinion.
(b) The Company shall cause the Proxy Statement to comply in all material respects with the Federal Securities Laws. The Company shall consult with Parent and Merger Sub with respect to the Meeting Statement (and any amendments or supplements thereto) and shall afford Parent and Merger Sub reasonable opportunity to review and comment on the Meeting Statement (and any amendments or supplements thereto) prior to its obligations pursuant to this Section 6.5 filing. Parent and Merger Sub shall not be affected by the commencement, announcement, disclosure, or communication promptly furnish to the Company of any and all information relating to Parent and Merger Sub required or reasonably requested by the Company Competing Proposal to be included in the Meeting Statement, including any information required under the Exchange Act and the rules and regulations promulgated thereunder. The Company shall provide Parent and its counsel in writing with any comments or other proposal communications that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Meeting Statement (includingand any amendments or supplements thereto) promptly after receipt of such comments or other communications, as applicableand the Company shall use reasonable best efforts to permit Parent, a Merger Sub and their Representatives to participate with the Company Superior Proposal) or its Representatives in any discussions or meetings with the occurrence or disclosure of any Company Intervening EventSEC.
(c) Immediately after Each of the execution Company, Parent and Merger Sub shall (i) promptly correct any information provided by it for use in the Proxy Statement if and to the extent that such information shall become false or misleading in any material respect and (ii) promptly notify each other in writing, prior to the Closing, of the occurrence of any event or the discovery of any information which should be set forth in an amendment or supplement to the Meeting Statement. In the case of an amendment or supplement to the Meeting Statement being appropriate, the Company, with the cooperation of Parent and Merger Sub, will promptly prepare and mail such amendment or supplement and the Company shall consult with Parent and Merger Sub with respect to such amendment or supplement and shall afford Parent and Merger Sub reasonable opportunity to review and comment thereon prior to such mailing. The Company agrees to notify Parent and Merger Sub at least three (3) calendar days prior to the mailing of the Meeting Statement (or any amendment or supplement thereto) to the Stockholders.
(d) Parent and Merger Sub each agree that at the Stockholders Meeting they will vote, or cause to be voted, all of the Shares then beneficially owned by them in favor of the approval of the Merger and the adoption of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Sources: Merger Agreement (KSW Inc)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents Regardless of whether the Company to duly give notice of, convene and hold (in person Board determines at any time that this Agreement is no longer advisable or virtuallyrecommends that the Company’s stockholders reject it or whether any other Change of Recommendation has occurred at any time, in accordance with applicable Law) Section 6.2, but subject to the Company’s rights under Sections 8.1, 8.2 and 8.3, the Company Stockholders Meeting, to shall (a) establish a record date (which will be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption date of this Agreement) for, duly call, give notice of, convene and hold, a meeting of its stockholders (the “Stockholders Meeting”), for the purpose of obtaining the Requisite Company Vote and (b) use its reasonable best efforts to obtain cause the Company Stockholder Approval and submit Stockholders Meeting to occur within 30 days immediately following the proposal to adopt this Agreement date on which the Proxy Statement is mailed to the Company’s stockholders of (unless otherwise consented to in writing by Parent (such consent not to be unreasonably withheld, delayed or conditioned) and if such calendar day is not a Business Day, on the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything first Business Day subsequent to the contrary contained in this Agreementsuch calendar day); provided that, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) may postpone or adjourn such meeting to the extent that it has reasonably determined, after consultation with outside legal counsel, that such postponement or adjournment is necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or within a reasonable amount of time in advance of the Stockholders Meeting; (Bii) if, if as of the time for which the Company Stockholders Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented Shares present (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company of the Stockholders Meeting or insufficient votes in favor of adoption of this Agreement to obtain the Requisite Company Vote, the Company may postpone or adjourn the Stockholders Meeting to a date that is a Business Day and no more than 30 days after the previous meeting date, as reasonably determined by the Company; and the Company shall use its commercially reasonable efforts during such period to obtain such a quorum as promptly as practicable; and (iiiii) the Company may adjourn or postpone the Company Stockholders Meeting with until the written consent fourth Business Day after the expiration of Parent if, as any Change of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder ApprovalRecommendation Notice Period; provided, howeverfurther, that, in the event that (x) unless otherwise agreed to by during the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) five Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have date that the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not is then scheduled to be unreasonably withheld, conditioned, or delayed). If requested by Parentheld, the Company shall promptly provide Parent with all voting tabulation reports relating delivers a notice of an intent to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been make a Company Change of Recommendation made in accordance with Section 6.36.2(d), the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent Parent may direct the Company Stockholder Approval from being obtained. The Companyto adjourn or postpone the Stockholders Meeting for up to 10 Business Days and the Company will promptly, and in consultation any event no later than the next Business Day, adjourn or postpone the Stockholders Meeting in accordance with Parent, shall fix ’s direction. Once the Company has established a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which such consent shall not to be unreasonably withheld, conditioned or delayed). Unless the Company Board shall have effected a Change of Recommendation in accordance with Section 6.2, the Company Board shall make the Company Recommendation and the Company shall use its reasonable best efforts to obtain the Requisite Company Vote. Without the prior written consent of Parent or as required by applicable LawParent, (i) the adoption of this Agreement shall and approval of the transactions contemplated by this Agreement will be the only matter matters (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposalrelated procedural matters) that the Company shall will propose to be acted on by the Company’s stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. If adoption of this Agreement by the stockholders of the Company is required under the DGCL in order to consummate the Merger:
(a) As promptly as practicable following the Acceptance Time, the Company shall, after consultation with Parent, prepare and file with the SEC (i) a proxy or information statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) or (ii) if Parent specifies that adoption of this Agreement be effected by the written consent of the stockholders of the Company, an information statement with respect to such written consent (together with any amendments thereof or supplements thereto and any other required materials, the “Information Statement”), in each case relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement or Information Statement, as applicable, before it is filed with the SEC and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. Subject to Section 5.2, the Company shall include in the Proxy Statement or Information Statement, as applicable, the recommendation of the Company Board of Directors that stockholders of the Company vote in favor of or consent to, as applicable, the adoption of this Agreement and approval of the Merger in accordance with the DGCL. The Company shall take all action necessary use its commercially reasonable efforts to obtain and furnish the information required to be included by the SEC in accordance the Proxy Statement or Information Statement, as applicable, and, after consultation with applicable Laws Purchaser, respond promptly to any comments made by the SEC with respect to the Proxy Statement or Information Statement, as applicable. The Company shall provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement or Information Statement, as applicable, promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses and the Organizational Documents Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement or Information Statement, as applicable, if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law and, the Company further agrees to cause the Proxy Statement or Information Statement, as applicable, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement or Information Statement, as applicable, as provided in Section 1.8(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Exchange Act or the SEC (or its staff). Table of Contents
(b) The Company, acting through the Company to duly give notice ofBoard of Directors, convene and hold (in person or virtuallyshall, in accordance with and subject to the requirements of applicable Law:
(i) the Company Stockholders Meeting, to be held (A) (1) as promptly as reasonably practicable following the clearance Acceptance Time, in consultation with Parent, duly set a record date for, call and give notice of a special meeting of its stockholders (the Proxy Statement “Special Meeting”) for the purpose of considering and taking action upon this Agreement (with the record date and meeting date set in consultation with Purchaser), and (2) as promptly as reasonably practicable following the Acceptance Time, convene and hold the Special Meeting or (B) if Parent specifies that adoption of this Agreement be effected by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change written consent of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve Company, as promptly as reasonably practicable following the Acceptance Time and adopt this Agreement at in accordance with the Company Stockholders Meeting DGCL, set a record date for and solicit such written consents;
(ii) as promptly as reasonably practicable following the Acceptance Time, file the definitive Proxy Statement (or, in the case of written consent, the Information Statement) with the SEC and cause the Proxy Statement shall include (or, in the Company Board Recommendation. The Company shall case of written consent, the Information Statement) to be mailed to its stockholders; and
(iii) (A) solicit from its stockholders of the Company proxies or written consents in favor of the adoption of this Agreement, Agreement and approval of the Merger and (B) use its commercially reasonable best efforts to obtain secure any other approval of stockholders of the Company Stockholder Approval that is required by the DGCL and submit any other applicable Law to effect the proposal Merger.
(c) At the Special Meeting or any postponement or adjournment thereof, Parent shall cause to adopt be present and vote, or cause to be voted (or, if Parent specifies that adoption of this Agreement to be effected by the written consent of the stockholders of the Company at the Company Stockholders Meeting. The Company Company, Parent shall ensure that consent, or cause such consent to be given with respect to), all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduledShares then owned of record by it, there are insufficient shares of Company Common Stock represented (either in person Purchaser or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any their other Person to prevent the Company Stockholder Approval from being obtained. The Company, Subsidiaries in consultation with Parent, shall fix a record date for determining the stockholders favor of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers and approval of the Company in connection with the Merger and matters of procedureto deliver or provide, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole a stockholder of Merger Sub Inc. in accordance with the Company, any other approvals that are required by the DGCL and any other applicable Law and to effect the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementMerger.
Appears in 1 contract
Sources: Merger Agreement (Johnson & Johnson)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and Subject to the Organizational Documents ability of the Company to duly give notice ofterminate this Agreement in accordance with the terms of Section 8.1(d), convene and hold (in person or virtuallythe Company shall, as soon as reasonably practicable after the date of this Agreement, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting Charter Documents and the Proxy Statement shall include the Company Board Recommendation. rules of The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this AgreementNASDAQ Stock Market, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to duly call, give notice of, convene and hold a special meeting of the Company's stockholders (the "Special Meeting") for the purpose of considering and taking action upon the adoption of this Agreement. Subject to the ability of the Company Stockholders Meeting pursuant Board to effect an Adverse Recommendation Change in accordance with Section 5.2, the Company Board shall (i) recommend approval and adoption of this Section 6.5 shall not be affected Agreement by the making of a Company Change of Recommendation Company's stockholders, (ii) use its commercially reasonable efforts to obtain the Stockholder Approval and its obligations pursuant (iii) otherwise comply with all legal requirements and common law duties applicable to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Eventsuch meeting.
(cb) Immediately after Subject to the execution ability of this Agreement, Parent shall duly adopt the Company to terminate this Agreement in its capacity as accordance with the sole stockholder terms of Merger Sub Inc. Article VIII, at the Special Meeting, the Company shall, through the Company Board, make the Company Recommendation unless there has been an Adverse Recommendation Change made in accordance with Section 5.2. Prior to (or after the withdrawal of) any Adverse Recommendation Change, the Company shall take all reasonable lawful action to solicit the Stockholder Approval. Notwithstanding any Adverse Recommendation Change, the Company shall take all commercially reasonable lawful action in order to properly call, hold, and complete the Special Meeting in compliance with applicable Law and the Organizational Company Charter Documents of Merger Sub Inc. including, without limitation, (i) setting and deliver publicizing the record date for the Special Meeting, (ii) printing, mailing, and filing with the SEC, the Proxy Statement in accordance with Section 3.10, (iii) making available reasonably adequate facilities and Company representatives for the Special Meeting, and (iv) collecting and tabulating proxies and other votes cast during or prior to the Company evidence of Special Meeting, in each case, substantially consistent with the Company's past practices for its vote or action by written consent so adopting this Agreementstockholder meetings held since January 1, 2009.
Appears in 1 contract
Sources: Merger Agreement (Adams Golf Inc)
Stockholders Meeting. (a) The Company, acting through the Company Board, shall take all action necessary actions in accordance with applicable Laws law, its Certificate of Incorporation and the Organizational Documents of the Company By-laws to promptly and duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance Company Meeting for the purpose of considering and voting upon the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC Company Voting Proposal. Subject to Section 6.1, (and in any event will use reasonable best efforts to convene such meeting within forty-five (45a) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that adoption of the Company Voting Proposal by the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and include such recommendation in the Proxy Statement shall include and (b) the Company Board Recommendation. The Company shall solicit from stockholders not withhold, withdraw or modify, or publicly propose or resolve to withhold, withdraw or modify in a manner adverse to the Buyer, the recommendation of the Company proxies Board that the Company’s stockholders vote in favor of the adoption of Company Voting Proposal (any such withholding, withdrawal or modification, a “Change in Company Recommendation”). Notwithstanding any Change in Company Recommendation, unless this AgreementAgreement is terminated pursuant to Article VIII, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement Voting Proposal shall be submitted to the stockholders of the Company at the Company Stockholders MeetingMeeting for the purposes of approving the Company Voting Proposal, and nothing contained in this Agreement shall be deemed to relieve the Company of such obligation, unless this Agreement is terminated pursuant to Article VIII. The Subject to Section 6.1, the Company shall ensure take all action that all is both reasonable and lawful to solicit from its stockholders proxies solicited in connection with favor of the Company Stockholders Meeting are solicited in compliance with any applicable LawsVoting Proposal and shall take all other action reasonably necessary or advisable to secure the vote or consent of the stockholders of the Company required by the DGCL to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to Company, after consultation with the Buyer, may adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) ifor, if as of the time for which the Company Stockholders Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Gensym Corp)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of Company, acting through the Company to duly give notice ofBoard, convene and hold (in person or virtuallyshall, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company law:
(i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to duly call, give notice of, convene and hold a special meeting of its stockholders (the “Special Meeting”) for the purpose of considering and taking action upon this Agreement, and the Company Stockholders shall use its reasonable best efforts to hold the Special Meeting pursuant as soon as practicable after the date on which the Proxy Statement is cleared by the SEC;
(ii) as promptly as practicable, prepare and file with the SEC a preliminary proxy statement relating to this Section 6.5 shall not Agreement and the Merger;
(iii) use its reasonable best efforts to (A) obtain and furnish the information required to be affected included by the making of SEC in a Company Change of Recommendation and its obligations pursuant definitive proxy statement (the “Proxy Statement”) and, after consultation with Parent, to this Section 6.5 shall not be affected respond promptly to any comments made by the commencementSEC with respect to the preliminary proxy statement and cause the Proxy Statement to be mailed to its stockholders as promptly as practicable following clearance from the SEC, announcementand (B) obtain the necessary approval of this Agreement by its stockholders; and
(iv) subject to the fiduciary duties of the Company Board as provided in Section 7.5, disclosure, or communication include in the Proxy Statement the unanimous recommendation of the Company Board that stockholders of the Company vote in favor of the adoption and approval of this Agreement.
(b) Parent and MergerCo shall provide to the Company any information for inclusion in the Proxy Statement which may be required under applicable law and which is reasonably requested by the Company. Each of the Company, on the one hand, and Parent and MergerCo, on the other hand, agree promptly to correct any information provided by either of them for use in the Proxy Statement if, and to the extent that, such information shall have become false or misleading in any material respect, and the Company Competing Proposal or other proposal (includingfurther agrees to take all necessary steps to cause the Proxy Statement as so corrected to be filed with the SEC and to be disseminated to the stockholders of the Company, in each case, as applicable, a Company Superior Proposal) or and to the occurrence or disclosure of any Company Intervening Eventextent required by applicable federal securities laws.
(c) Immediately after The Company hereby represents and warrants that the execution information supplied or to be supplied by the Company for inclusion or incorporation by reference in (i) the Proxy Statement or (ii) the Other Filings, will, at the respective times filed with the SEC or other Governmental Entity and, in addition, in the case of this Agreementthe Proxy Statement, Parent shall duly adopt this Agreement as of the date it or any amendment or supplement thereto is mailed to stockholders and at the time of the Special Meeting, not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in its capacity order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement, insofar as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver it relates to the Company evidence or other information supplied by the Company for inclusion therein, will comply as to form in all material respects with the requirements of its vote the Exchange Act and the rules and regulations promulgated thereunder. Notwithstanding the foregoing, the Company makes no representation, warranty or action covenant with respect to information concerning Parent or MergerCo included in the Proxy Statement or information supplied by written consent so adopting this AgreementParent or MergerCo for inclusion in the Proxy Statement.
(d) Parent and MergerCo jointly and severally hereby represent and warrant that the information supplied or to be supplied by Parent or MergerCo for inclusion or incorporation by reference in (i) the Proxy Statement or (ii) the Other Filings, will, at the respective times filed with the SEC or other Governmental Entity and, in addition, in the case of the Proxy Statement, as of the date it or any amendment or supplement thereto is mailed to stockholders and at the time of the Special Meeting, not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement, insofar as it relates to Parent or MergerCo or other information supplied by Parent or MergerCo for inclusion therein, will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. Notwithstanding the foregoing, Parent and MergerCo make no representation, warranty or covenant with respect to information concerning the Company included in the Proxy Statement or information supplied by the Company for inclusion in the Proxy Statement.
Appears in 1 contract
Sources: Merger Agreement (Rc2 Corp)
Stockholders Meeting. (a) The Company, acting through the Company Board, shall take all action necessary actions in accordance with applicable Laws Law, its Certificate of Incorporation and By-laws and the Organizational Documents rules of the Company New York Stock Exchange to promptly and duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance Company Meeting for the purpose of considering and voting upon the Proxy Statement by Company Voting Proposal. Subject to the SEC and the Registration Statement is declared effective by the SEC occurrence of an Adverse Recommendation Change pursuant to Section 6.1, (and in any event will use reasonable best efforts to convene such meeting within forty-five (45a) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that adoption of the Company Voting Proposal by the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and include such recommendation in the Proxy Statement shall include and (b) the Company Board Recommendation. The Company shall solicit from stockholders not withhold, withdraw or modify, or publicly propose or resolve to withhold, withdraw or modify in a manner adverse to the Buyer, the recommendation of the Company Board that the Company’s stockholders vote in favor of the Company Voting Proposal. Subject to the occurrence of an Adverse Recommendation Change pursuant to Section 6.1, the Company shall take all action that is both reasonable and lawful to solicit from its stockholders proxies in favor of the adoption Company Voting Proposal and shall take all other action reasonably necessary or advisable to secure the vote or consent of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at required by the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with rules of the Company Stockholders Meeting are solicited in compliance with any applicable LawsNew York Stock Exchange or the DGCL to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to may adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that provide any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders in advance of the Company Meeting (solely in the event that such supplement or (Bamendment is determined by the Company in good faith, after consultation with outside counsel, to be required by applicable Law) ifor, if as of the time for which the Company Stockholders Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) and voting in favor to approve the Company Voting Proposal or to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, the Company agrees that, unless this Agreement shall have been is validly terminated pursuant in accordance with Section 8.1 and, to Article VIIIthe extent required under the terms of this Agreement, the Company agrees that pays to the Buyer the Company Termination Fee in accordance with Section 8.3(b) or the Expense Reimbursement in accordance with Section 8.3(c), (i) its obligations obligation to duly call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company an Adverse Recommendation Change of Recommendation and (ii) its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcementpublic proposal, disclosure, public disclosure or communication to the Company of any Company Competing Acquisition Proposal (whether or other proposal (including, as applicable, not a Company Superior Proposal) or ). Unless this Agreement is terminated in accordance with Section 8.1 and, to the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after extent required under the execution terms of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. Company pays to the Buyer the Company Termination Fee in accordance with applicable Law and Section 8.3(b) or the Organizational Documents Expense Reimbursement in accordance with Section 8.3(c), the Company agrees that it shall not submit to the vote of Merger Sub Inc. and deliver the Company’s stockholders any Acquisition Proposal (whether or not a Superior Proposal) prior to the vote of the Company’s stockholders with respect to the Company evidence of its vote or action by written consent so adopting this AgreementVoting Proposal at the Company Meeting.
Appears in 1 contract
Stockholders Meeting. If adoption of this Agreement by the stockholders of the Company is required under the DGCL in order to consummate the Merger:
(a) As promptly as practicable following the Acceptance Time, the Company shall, after consultation with Parent, prepare and file with the SEC (i) a proxy or information statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) or (ii) if Parent specifies that adoption of this Agreement be effected by the written consent of the stockholders of the Company, an information statement with respect to such written consent (together with any amendments thereof or supplements thereto and any other required materials, the “Information Statement”), in each case relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement or Information Statement, as applicable, before it is filed with the SEC and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. Subject to Section 5.2, the Company shall include in the Proxy Statement or Information Statement, as applicable, the recommendation of the Company Board of Directors that stockholders of the Company vote in favor of or consent to, as applicable, the adoption of this Agreement and approval of the Merger in accordance with the DGCL. The Company shall take all action necessary use its commercially reasonable efforts to obtain and furnish the information required to be included by the SEC in accordance the Proxy Statement or Information Statement, as applicable, and, after consultation with applicable Laws Purchaser, respond promptly to any comments made by the SEC with respect to the Proxy Statement or Information Statement, as applicable. The Company shall provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement or Information Statement, as applicable, promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses and the Organizational Documents Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement or Information Statement, as applicable, if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law and, the Company further agrees to cause the Proxy Statement or Information Statement, as applicable, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement or Information Statement, as applicable, as provided in Section 1.8(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Exchange Act or the SEC (or its staff).
(b) The Company, acting through the Company to duly give notice ofBoard of Directors, convene and hold (in person or virtuallyshall, in accordance with and subject to the requirements of applicable Law:
(i) the Company Stockholders Meeting, to be held (A) (1) as promptly as reasonably practicable following the clearance Acceptance Time, in consultation with Parent, duly set a record date for, call and give notice of a special meeting of its stockholders (the Proxy Statement “Special Meeting”) for the purpose of considering and taking action upon this Agreement (with the record date and meeting date set in consultation with Purchaser), and (2) as promptly as reasonably practicable following the Acceptance Time, convene and hold the Special Meeting or (B) if Parent specifies that adoption of this Agreement be effected by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change written consent of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve Company, as promptly as reasonably practicable following the Acceptance Time and adopt this Agreement at in accordance with the Company Stockholders Meeting DGCL, set a record date for and solicit such written consents;
(ii) as promptly as reasonably practicable following the Acceptance Time, file the definitive Proxy Statement (or, in the case of written consent, the Information Statement) with the SEC and cause the Proxy Statement shall include (or, in the Company Board Recommendation. The Company shall case of written consent, the Information Statement) to be mailed to its stockholders; and
(iii) (A) solicit from its stockholders of the Company proxies or written consents in favor of the adoption of this Agreement, Agreement and approval of the Merger and (B) use its commercially reasonable best efforts to obtain secure any other approval of stockholders of the Company Stockholder Approval that is required by the DGCL and submit any other applicable Law to effect the proposal Merger.
(c) At the Special Meeting or any postponement or adjournment thereof, Parent shall cause to adopt be present and vote, or cause to be voted (or, if Parent specifies that adoption of this Agreement to be effected by the written consent of the stockholders of the Company at the Company Stockholders Meeting. The Company Company, Parent shall ensure that consent, or cause such consent to be given with respect to), all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduledShares then owned of record by it, there are insufficient shares of Company Common Stock represented (either in person Purchaser or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any their other Person to prevent the Company Stockholder Approval from being obtained. The Company, Subsidiaries in consultation with Parent, shall fix a record date for determining the stockholders favor of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers and approval of the Company in connection with the Merger and matters of procedureto deliver or provide, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole a stockholder of Merger Sub Inc. in accordance with the Company, any other approvals that are required by the DGCL and any other applicable Law and to effect the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementMerger.
Appears in 1 contract
Stockholders Meeting. (a) The As promptly as practicable after the SEC confirms that it has no further comments on the Proxy Statement, the Company, acting through the Company Board, shall take all action necessary actions in accordance with applicable Laws Law, including the rules and regulations under the Exchange Act, its certificate of incorporation and by-laws and the Organizational Documents rules of the Company The Nasdaq Stock Market to duly call, give notice of, convene and hold (in person or virtuallyhold, in accordance with applicable Law) the Company Stockholders Meeting, for the purpose of considering and voting upon the Company Voting Proposal. Subject to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC Section 6.1, (and in any event will use reasonable best efforts to convene such meeting within forty-five (45i) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that adoption of the Company Voting Proposal by the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and include such recommendation in the Proxy Statement shall include Statement, (ii) the Company Board Recommendation. The Company shall solicit from stockholders not withhold, withdraw or modify, or publicly propose or resolve to withhold, withdraw or modify in a manner adverse to the Parent, the recommendation of the Company proxies Board that the Company’s stockholders vote in favor of the adoption of this Agreement, Company Voting Proposal and (iii) the Company shall use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable LawsApproval. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to may adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders of the Company within a reasonable amount of time in advance of the Company Meeting or (B) if, if as of the time for which the Company Stockholders Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed)Meeting. If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have has been terminated pursuant to Article VIII, the Company agrees that shall submit the Merger and this Agreement for the approval of its obligations to call, give notice of, convene and hold stockholders at the Company Stockholders Meeting pursuant to this Section 6.5 shall Meeting, whether or not be affected by the making of a Company Adverse Recommendation Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, have occurred or communication an Acquisition Proposal shall have been publicly announced or otherwise made known to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening EventBoard.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Subject to Section 5.3, the Company shall take all action necessary will take, in accordance with applicable Laws Law and the Organizational Documents its certificate of the Company incorporation and bylaws, all action necessary to duly call, give notice of, convene and hold a meeting of holders of Shares (in person including any adjournment or virtuallypostponement thereof as permitted by this Section 5.4, in accordance with applicable Law) the Company “Stockholders Meeting, to be held ”) as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC to consider and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of vote upon the adoption of this Agreement; provided, use its reasonable best efforts to obtain that the Company Stockholder Approval and submit may postpone or adjourn to a later date the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without , (ii) for the absence of a quorum, (iii) to allow reasonable additional time to solicit additional proxies if the Company has not received proxies representing a sufficient number of shares of Common Stock to adopt this Agreement, whether or not a quorum is present, (iv) if required by applicable Law or (v) to allow reasonable additional time for the filing and dissemination of any supplemental or amended disclosure if, in the good faith judgment of the Company Board (after consultation with outside legal counsel), the failure to do so would be reasonably likely to be inconsistent with its fiduciary obligations under applicable Law; provided, further, that in no event shall the Stockholders Meeting be postponed or adjourned beyond the date that is five (5) Business Days prior to the Termination Date without the prior written consent of Parent or as required by applicable LawParent. Unless there has been a Change of Recommendation pursuant to Section 5.2, (i) the Company shall use its reasonable best efforts to lawfully obtain the Stockholder Approval, including actively soliciting proxies in favor of the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and Meeting. Unless this Agreement is terminated in accordance with its terms, the Company shall not submit to the vote of its stockholders any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders MeetingAcquisition Proposal.
(b) Without limiting The Company shall keep Parent informed with respect to proxy solicitation results as reasonably requested by Parent and shall provide such information and reasonable cooperation as Parent may reasonably request in connection therewith. Notwithstanding anything to the generality of the foregoingcontrary in this Agreement, unless this Agreement shall have been is terminated pursuant to Article VIIIin accordance with its terms, the Company agrees that its obligations shall remain obligated to provide the information and cooperation described in the immediately preceding sentence and duly call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected and mail the Proxy Statement (and any amendment or supplement thereto that maybe required by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication applicable Law) to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. Company’s stockholders in accordance with applicable Law Section 5.3 and the Organizational Documents this Section 5.4, notwithstanding any Change of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementRecommendation.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws establish a record date that is one Business Day prior to the Closing Date for, and the Organizational Documents of the Company to duly shall call, give notice of, convene and hold hold, a special meeting of stockholders of the Company (the “Stockholder Meeting”), as promptly as practicable following the date hereof and in person no event later than July 10, 2017 for the purpose of voting upon the approval of resolutions (the “Stockholder Resolutions”) with respect to the matters contemplated by the Stockholder Approval (the date such approval is obtained, the “Stockholder Approval Date”), provided, however, nothing herein shall prevent the Company from postponing or virtuallyadjourning the Stockholder Meeting if (i) there are insufficient shares of the Common Stock present or represented by a proxy at the Stockholder Meeting to conduct business at the Stockholder Meeting, in accordance with applicable Law(ii) the Company Stockholders Meetingis required to postpone or adjourn the Stockholder Meeting by applicable law or a request from the Commission or its staff, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC or (and in any event will use reasonable best efforts to convene such meeting within forty-five (45iii) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend determines in good faith (after consultation with outside legal counsel) that it is necessary or appropriate to postpone or adjourn the Stockholder Meeting in order to give the stockholders of the Company approve and adopt this Agreement at sufficient time to evaluate any information or disclosure that the Company Stockholders Meeting and has sent to the Proxy Statement shall include stockholders or otherwise made available to the Company Board Recommendationstockholders by issuing a press release, filing materials with the SEC or otherwise. The Company shall solicit from the stockholders of the Company proxies in favor of the adoption of this AgreementStockholder Resolutions in accordance with applicable law, use its reasonable best efforts to obtain the Company Stockholder Approval and shall submit the proposal to adopt this Agreement to the stockholders Stockholder Resolutions for a vote of the Company Company’s stockholders at the Company Stockholders Stockholder Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that not permit any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) ifof, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditionedmodification to, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status waiver of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote atrights under, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Voting Agreement or the consummation Security Holder Agreement without the consent of the TransactionsPurchasers, (B) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal take reasonable measures (including, as applicablefor the avoidance doubt, a Company Superior Proposalinitiating and prosecuting litigation against the other parties thereto) or to enforce its rights under the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Voting Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. Security Holder Agreement and deliver (C) use commercially reasonable efforts to secure the Company evidence of its vote or action by written consent so adopting this AgreementStockholder Approval at the Stockholder Meeting.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall will take all action necessary in accordance with applicable Laws Delaware law and the Organizational Documents its Certificate of the Company Incorporation and Bylaws to duly give notice ofcall, notice, convene and hold (in person or virtually, in accordance with applicable Law) a meeting of the Company Stockholders Meeting, (the "STOCKHOLDERS MEETING") to be held as promptly as reasonably practicable following practicable, and in no event after August 25, 2000, for the clearance purpose of the Proxy Statement by the SEC voting upon approval of this Agreement and the Registration Statement is declared effective by the SEC (and in any event Merger. Company will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at solicit from the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption approval of this AgreementAgreement and the Merger, and will use its all reasonable best efforts to obtain take all other action necessary or advisable to secure the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders vote or consent of the Company at Stockholders required by Delaware law to obtain such approvals. Company shall ensure that the Stockholders Meeting is called, noticed, convened, held and conducted prior to and separate from any meeting of the Company Stockholders Meetingat which any Acquisition Proposal (as defined in Section 4.4) is considered or voted upon. The Company shall will use all reasonable efforts to ensure that all proxies solicited by Company in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this AgreementDelaware law, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as its Certificate of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting Incorporation and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other RepresentativeBylaws, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the all other applicable legal requirements. Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations 's obligation to call, give notice of, convene convene, hold and hold conduct the Company Stockholders Meeting pursuant to in accordance with this Section 6.5 4.12 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant limited to this Section 6.5 shall not be or otherwise affected by the commencement, announcement, disclosure, announcement or communication submission to Company of any Acquisition Proposal (including a Superior Offer (as defined in Section 4.4), or by any withdrawal, amendment or modification of the recommendation of the Board of Directors of Company to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or Stockholders to approve this Agreement and the occurrence or disclosure of any Company Intervening EventMerger.
(cb) Immediately after The Board of Directors of Company shall recommend that the execution Company Stockholders vote in favor of this Agreement, Parent shall duly adopt and approve this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. at the Stockholders Meeting, subject to Section 4.4; and deliver the information statement shall include a statement to the effect that the Board of Directors of the Company evidence has recommended that the Company Stockholders vote in favor of its vote or action by written consent so adopting and approve this AgreementAgreement and the Merger at the Stockholders Meeting.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Flextronics International LTD)
Stockholders Meeting. (a) The Company shall take all action necessary will take, in accordance with applicable Laws Law and the Organizational Documents its certificate of the Company incorporation and bylaws, all action necessary to duly call, give notice of, convene and hold a meeting of holders of Company Common Shares and Company Limited Voting Shares (in person or virtually, in accordance with applicable Law) the Company “Stockholders Meeting, to be held ”) for the purpose of seeking the Requisite Company Vote as promptly as reasonably practicable after the execution of this Agreement, and in any event within fifty (50) days following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof)SEC. Except where a The Company Change of Recommendation has been made in compliance with Section 6.3shall, through the Company Board shall Board, (i) recommend that the stockholders to holders of the Company approve Common Shares and adopt this Agreement at Company Limited Voting Shares that they give the Requisite Company Stockholders Meeting Vote and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, (ii) use its reasonable best efforts to obtain solicit the Requisite Company Vote (including by soliciting proxies from the Company’s stockholders), except to the extent that the Company Stockholder Approval Board shall have effected a Change of Recommendation, as permitted by and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meetingdetermined in accordance with Section 6.2. The Company shall ensure that all proxies solicited in connection keep Parent updated with respect to proxy solicitation results as reasonably requested by Parent. The Company shall not postpone or adjourn the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything except to the contrary contained extent (1) Parent has consented to such postponement or adjournment in this Agreementwriting, or (2) the Company Company, acting in good faith after consulting with its outside legal counsel, determines that (i) shall be required to adjourn such postponement or postpone the Company Stockholders Meeting (A) to the extent adjournment is necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders of the Company within a reasonable amount of time in advance of the Stockholders Meeting, (ii) (A) it will not receive proxies sufficient to obtain the Requisite Company Vote, whether or not a quorum is present, or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of it will not have sufficient Company Common Stock Shares and Company Limited Voting Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of the Stockholders Meeting, or (iii) such Company Stockholders Meeting and postponement or adjournment is required to comply with applicable Law; provided that in the case of any postponement or adjournment under clause (ii) may adjourn or postpone above, the Company Stockholders Meeting with the written consent of Parent if, as date of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be postponed or adjourned or postponed to a date that is by more than ten an aggregate of fifteen (1015) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or calendar days other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation than with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the ’s prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless Unless this Agreement shall have been terminated pursuant to Article in accordance with ARTICLE VIII, the obligation of the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant and mail the Proxy Statement to this Section 6.5 the Company’s stockholders shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening EventRecommendation.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary will take, in accordance with applicable Laws Law and the Organizational Documents its certificate of the Company incorporation and by-laws, all action necessary to establish a record date for, duly call, give notice of, convene and hold a meeting of holders of Shares (in person or virtually, in accordance with applicable Law) the Company “Stockholders Meeting, to be held ”) as promptly as reasonably practicable following after the clearance date that the SEC staff informs the Company that it has no further comments on the preliminary Proxy Statement, to consider and vote upon the adoption of this Agreement, and the Company shall conduct in a timely manner a “broker search” in accordance with Rule 14a-13 of the Exchange Act in connection therewith; provided that in no event shall the Company be required to hold the Stockholders Meeting prior to the fifth business day after the earlier of (x) the Cut-Off Date and (y) the first date from and after the Go-Shop Period End Date as of which no Person qualifies as an Excluded Person. Following the distribution of the Proxy Statement pursuant to Section 6.3, the date of the Stockholders Meeting may not be adjourned or postponed, except the Stockholder Meeting may be adjourned or postponed from time to time and at any time by the SEC Company (and the Registration Statement is declared effective shall be adjourned or postponed by the SEC Company at the reasonable request of Parent in circumstances Table of Contents described in clauses (b) or (d)): (a) with the consent of Parent (not to be unreasonably withheld, conditioned or delayed); (b) for the absence of a quorum; (c) as the Company Board or any duly constituted committee thereof determines in good faith is required by applicable Law, including in connection with the discharge of the fiduciary duties of the Company Board to the extent necessary to allow for the filing or distribution of any supplemental or amended disclosure with respect to the transactions contemplated by this Agreement which the Company Board has determined in good faith (after consultation with its outside legal counsel) is necessary under applicable Laws and in any event will use reasonable best efforts for such supplemental or amended disclosure to convene such meeting within forty-five be disseminated to and reviewed by the Company’s stockholders prior to the Company Stockholders Meeting; or (45d) days thereof)to solicit additional proxies if the Company or Parent reasonably believes doing so may be necessary to obtain the Requisite Company Vote. Except where a Company Change of Recommendation has been made in compliance with Subject to Section 6.36.2 hereof, the Company Board shall recommend that the stockholders of the Company approve such adoption and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall use reasonable best efforts to take customary lawful actions to solicit from stockholders of the Company proxies in favor of the such adoption of this Agreement. For the avoidance of doubt, use its reasonable best efforts to obtain the extent the Company Stockholder Approval and Board makes a Change of Recommendation, the Company nevertheless shall continue to submit the proposal to adopt this Agreement to the stockholders of the Company for adoption at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver its terms prior to the Company evidence of its vote or action by written consent so adopting this AgreementStockholders Meeting.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary under Applicable Law to call, give notice of and hold a meeting of the holders of Common Stock (the “Company Stockholders”) to consider and vote to approve the Company Stockholder Matters in accordance with applicable Laws the terms of this Agreement (such meeting, the “Company Stockholder Meeting” and such approval, the Organizational Documents of the “Requisite Stockholder Approval”). The Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to Stockholder Meeting shall be held as promptly as reasonably practicable following after the clearance of date that the definitive Proxy Statement by is filed with the SEC and the Registration Statement is declared effective by the SEC (Commission, and in any event will use reasonable best efforts to convene no later than 50 days after such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendationdate. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its take reasonable best efforts measures to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Stockholder Meeting are solicited in compliance with any applicable LawsApplicable Law. Notwithstanding anything The Company shall regularly provide updates to Amazon on voting totals with respect to the contrary contained Company Stockholder Matters. The Company Stockholder Meeting may be postponed or adjourned in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to accordance with the Company’s stockholders bylaws or as otherwise required by Applicable Law if (Bx) if, as there is an insufficient number of the time for which shares of Common Stock present or represented by a proxy at the Company Stockholders Stockholder Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such the Company Stockholders Stockholder Meeting, (y) the Company is required to postpone or adjourn the Company Stockholder Meeting by Applicable Law or a request from the Commission or its staff, or (z) the Company determines in good faith (after reasonable consultation with Amazon and (iithe Company’s proxy solicitor) may that it is necessary or appropriate to postpone or adjourn or postpone the Company Stockholder Meeting in order to give the Company Stockholders Meeting with the written consent of Parent if, as of the sufficient time for which to evaluate any supplemental information or disclosure that the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person has sent or by proxy) otherwise made available to obtain the Company Stockholder Approvalthem; provided, however, that (x) unless otherwise agreed to by the Parties, date of the Company Stockholders Stockholder Meeting shall may not be postponed or adjourned or postponed to a date that is more than ten (10) Business Days after an aggregate of 30 days in connection with any postponement or adjournment. If the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall Requisite Stockholder Approval is not be adjourned obtained at or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for at Amazon’s request cause an additional Company Stockholder Meeting to be held every 12 months thereafter until the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers earlier of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to time such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement Requisite Stockholder Approval is obtained or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders MeetingExpiration Time.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. The Company, acting through its board of directors (the "Board of Directors"), shall:
(a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold a special or annual meeting of its stockholders, to be held as soon as practicable after the date hereof, for the purpose of considering and taking action upon the approval of the Warrant Issuance and the Stock Option Issuance, and the approval and adoption of the Stock Plan Amendment (such annual or special meeting, the "Stockholders' Meeting");
(b) include in the proxy statement distributed to the Company's stockholders in connection with the Stockholders' Meeting (the "Proxy Statement") the recommendation of the Board of Directors that stockholders of the Company Stockholders Meeting pursuant vote in favor of the approval of the Warrant Issuance and the Stock Option Issuance and the approval and adoption of the Stock Plan Amendment; provided, however, that if the Warrant Agreement is terminated in accordance with its terms prior to this Section 6.5 the date of the Stockholders' Meeting, then the Board of Directors shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant required to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication recommend to the stockholders of the Company that they vote in favor of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure approval of any Company Intervening Event.the Warrant Issuance; and
(c) Immediately after use reasonable efforts to promptly prepare and file with the execution of this Agreement, Parent shall duly adopt this Agreement Securities and Exchange Commission (the "Commission") the Proxy Statement and (1) obtain and furnish the information required to be included by it in the Proxy Statement and respond promptly to any comments made by the Commission with respect to the Proxy Statement and any preliminary version thereof and cause the Proxy Statement to be mailed to its capacity as stockholders at the sole stockholder of Merger Sub Inc. in accordance with applicable Law earliest practicable time following the date hereof and (2) solicit the approvals by its stockholders for the Warrant Issuance and Stock Option Issuance and the Organizational Documents adoption of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementStock Plan Amendment.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of Company, acting through the Company to duly give notice ofBoard, convene and hold (in person or virtuallyshall, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company law:
(i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to duly call, give notice of, convene and hold a special meeting of its stockholders (the "Special Meeting") for the purpose of considering and taking action upon this Agreement, and the Company Stockholders shall use its reasonable best efforts to hold the Special Meeting pursuant as soon as practicable after the date on which the Proxy Statement is cleared by the SEC;
(ii) as promptly as practicable, prepare and file with the SEC a preliminary proxy statement relating to this Section 6.5 shall not Agreement and the Merger;
(iii) use its reasonable best efforts to (A) obtain and furnish the information required to be affected included by the making of SEC in a Company Change of Recommendation and its obligations pursuant definitive proxy statement (the "Proxy Statement") and, after consultation with Parent, to this Section 6.5 shall not be affected respond promptly to any comments made by the commencementSEC with respect to the preliminary proxy statement and cause the Proxy Statement to be mailed to its stockholders as promptly as practicable following clearance from the SEC, announcementand (B) obtain the necessary approval of this Agreement by its stockholders; and
(iv) subject to the fiduciary duties of the Company Board as provided in Section 7.5, disclosure, or communication include in the Proxy Statement the unanimous recommendation of the Company Board that stockholders of the Company vote in favor of the adoption and approval of this Agreement.
(b) Parent and MergerCo shall provide to the Company any information for inclusion in the Proxy Statement which may be required under applicable law and which is reasonably requested by the Company. Each of the Company, on the one hand, and Parent and MergerCo, on the other hand, agree promptly to correct any information provided by either of them for use in the Proxy Statement if, and to the extent that, such information shall have become false or misleading in any material respect, and the Company Competing Proposal or other proposal (includingfurther agrees to take all necessary steps to cause the Proxy Statement as so corrected to be filed with the SEC and to be disseminated to the stockholders of the Company, in each case, as applicable, a Company Superior Proposal) or and to the occurrence or disclosure of any Company Intervening Eventextent required by applicable federal securities laws.
(c) Immediately after The Company hereby represents and warrants that the execution information supplied or to be supplied by the Company for inclusion or incorporation by reference in (i) the Proxy Statement or (ii) the Other Filings, will, at the respective times filed with the SEC or other Governmental Entity and, in addition, in the case of this Agreementthe Proxy Statement, Parent shall duly adopt this Agreement as of the date it or any amendment or supplement thereto is mailed to stockholders and at the time of the Special Meeting, not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in its capacity order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement, insofar as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver it relates to the Company evidence or other information supplied by the Company for inclusion therein, will comply as to form in all material respects with the requirements of its vote the Exchange Act and the rules and regulations promulgated thereunder. Notwithstanding the foregoing, the Company makes no representation, warranty or action covenant with respect to information concerning Parent or MergerCo included in the Proxy Statement or information supplied by written consent so adopting this AgreementParent or MergerCo for inclusion in the Proxy Statement.
(d) Parent and MergerCo jointly and severally hereby represent and warrant that the information supplied or to be supplied by Parent or MergerCo for inclusion or incorporation by reference in (i) the Proxy Statement or (ii) the Other Filings, will, at the respective times filed with the SEC or other Governmental Entity and, in addition, in the case of the Proxy Statement, as of the date it or any amendment or supplement thereto is mailed to stockholders and at the time of the Special Meeting, not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement, insofar as it relates to Parent or MergerCo or other information supplied by Parent or MergerCo for inclusion therein, will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. Notwithstanding the foregoing, Parent and MergerCo make no representation, warranty or covenant with respect to information concerning the Company included in the Proxy Statement or information supplied by the Company for inclusion in the Proxy Statement.
Appears in 1 contract
Sources: Merger Agreement (First Years Inc)
Stockholders Meeting. (a) The Promptly after the date hereof, the Company shall take all action necessary in accordance with applicable Laws the DGCL and its Restated Certificate of Incorporation and Bylaws and the Organizational Documents rules of the Company NASDAQ to duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held Meeting as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (practicable, and in any event will use reasonable best efforts (to convene such meeting the extent permissible under applicable law) within forty-five (45) 45 days thereofafter the declaration of effectiveness of the Registration Statement. Subject to Section 5.2(c). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall use its reasonable efforts to solicit from its stockholders of the Company proxies in favor of the adoption and approval of this Agreement, use Agreement and the approval of the Merger and will take all other action necessary to secure the vote or consent of its reasonable best efforts stockholders required by the rules of NASDAQ and DGCL to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Lawssuch approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required necessary supplement or amendment to the Proxy Statement Statement/Prospectus is provided to the Company’s 's stockholders sufficiently in advance of a vote on this Agreement to insure that such vote occurs on the basis of full and complete information as required under applicable law or (Bii) ifshall (unless the Buyer otherwise consents in writing or if - 41 - 49 prohibited by applicable law) adjourn the Company Meeting once for a period not to exceed 25 days, if as of the time for which the Company Stockholders Meeting is scheduledoriginally scheduled (as set forth in the Proxy Statement/Prospectus) or subsequently rescheduled or reconvened, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at Meeting. The Company shall ensure that the Company Stockholders Stockholders' Meeting without the written consent of Parent (which consent shall not be unreasonably withheldis called, conditionednoticed, or delayed). If requested by Parentconvened, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representativeheld and conducted, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts that all proxies solicited by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedureCompany Meeting are solicited, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection compliance with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIIIDGCL, the Company agrees that its obligations Company's Restated Certificate of Incorporation and Bylaws, the rules of NASDAQ and all other applicable legal requirements. The Company's obligation to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to in accordance with this Section 6.5 6.4(a) shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be limited or affected by the commencement, announcement, disclosure, announcement or communication submission to the Company of any Company Competing Acquisition Proposal or other proposal Superior Proposal (includingas defined below), as applicableor by any withdrawal, a Company Superior Proposal) amendment or modification of the occurrence or disclosure recommendation of any Company Intervening Eventthe Board with respect to this Agreement.
(cb) Immediately after Subject to Section 6.1: (i) the execution Board shall recommend that the Company's stockholders vote in favor of this Agreement, Parent shall duly and adopt and approve this Agreement in its capacity as at the sole stockholder of Merger Sub Inc. in accordance with applicable Law and Company Stockholders' Meeting; (ii) the Organizational Documents of Merger Sub Inc. and deliver Proxy Statement/Prospectus shall include a statement to the effect that the Board has unanimously recommended that Company's stockholders vote in favor of and adopt and approve this Agreement at the Company evidence Meeting; and (iii) neither the Board nor any committee thereof shall withdraw, amend or modify, or propose or resolve to withdraw, amend or modify in a manner adverse to the Buyer, the recommendation of its the Board that the Company's stockholders vote or action by written consent so adopting in favor of and adopt and approve this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents If approval of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt is required under the DGCL in order to consummate the Merger:
(a) As promptly as practicable following the execution of this Agreement at Agreement, the Company Stockholders shall prepare and file with the SEC a proxy or information statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review and comment on the Proxy Statement before it is filed with the SEC and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company shall use its reasonable best efforts to cause the Proxy Statement to be cleared by the SEC and mailed to the stockholders of the Company as promptly as practicable following the execution of this Agreement. The Company shall include in the Proxy Statement the Company Board Recommendation. The Company shall solicit use its reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable law and the Company further agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement as provided in Section 1.9(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Exchange Act or the SEC (or its staff).
(b) The Company, acting through the Company Board of Directors, shall, in accordance with and subject to the requirements of applicable law:
(i) (A) as promptly as practicable following the execution of this Agreement, duly set a record date for, call and give notice of a special meeting of the stockholders of the Company (the “Special Meeting”) for the purpose of obtaining the Stockholder Approval (with the record date and meeting date set in consultation with Purchaser and it being acknowledged that the record date shall be set for a time subsequent to the time that Purchaser becomes the record holder of the Shares purchased pursuant to the Offer), and (B) as promptly as practicable following the execution of this Agreement, if applicable, convene and hold the Special Meeting;
(ii) cause the definitive Proxy Statement to be mailed to its stockholders; and
(iii) use its reasonable best efforts to (A) solicit from its stockholders proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain Agreement and approval of the Company Stockholder Approval Merger and submit the proposal to adopt this Agreement to the (B) secure any approval of stockholders of the Company at that is required by the Company Stockholders Meeting. DGCL and any other applicable Law to effect the Merger.
(c) At the Special Meeting or any postponement or adjournment thereof, Parent shall vote, or cause to be voted, all of the Shares then owned by it, Purchaser or any of their respective subsidiaries and affiliates in favor of the adoption of this Agreement and approval of the Merger and to deliver or provide, in its capacity as a stockholder of the Company, any other approvals that are required by the DGCL and any other applicable law to effect the Merger.
(d) The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Special Meeting (A) to the extent necessary to ensure that any legally required necessary supplement or amendment to the Proxy Statement is provided to its stockholders in advance of a vote on the Company’s stockholders or (B) ifadoption of this Agreement and, if as of the time for which the Company Stockholders Special Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock stockholders represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such Special Meeting or to obtain the Stockholder Approval or there are insufficient votes to obtain the Stockholder Approval, the Company, with the consent of Parent, may and, at such Company Stockholders Meeting and (ii) may the direction of Parent, shall, adjourn or postpone the Company Stockholders Special Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is no more than ten thirty (1030) Business Days after days in the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meetingaggregate.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Datascope Corp)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly establish a record date for, call, give notice of, convene and hold an annual meeting or a special meeting of stockholders of the Company (the “Stockholder Meeting”), as promptly as practicable following the date hereof and in person no event later than July 10, 2017 for the purpose of voting upon the approval of resolutions (the “Stockholder Resolutions”) providing for the matters contemplated by the Vote (such affirmative approval being referred to herein as the “Stockholder Approval” and the date such approval is obtained, the “Stockholder Approval Date”), provided, however, nothing herein shall prevent the Company from postponing or virtuallyadjourning the Stockholder Meeting if (i) there are insufficient shares of the Common Stock present or represented by a proxy at the Stockholder Meeting to conduct business at the Stockholder Meeting, in accordance with applicable Law(ii) the Company Stockholders Meeting, is required to be held as promptly as reasonably practicable following postpone or adjourn the clearance of the Proxy Statement Stockholder Meeting by applicable law or a request from the SEC and the Registration Statement is declared effective by the SEC or its staff, or (and in any event will use reasonable best efforts to convene such meeting within forty-five (45iii) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend determines in good faith (after consultation with outside legal counsel) that it is necessary or appropriate to postpone or adjourn the Stockholder Meeting in order to give the stockholders of the Company approve and adopt this Agreement at sufficient time to evaluate any information or disclosure that the Company Stockholders Meeting and has sent to the Proxy Statement shall include stockholders or otherwise made available to the Company Board Recommendationstockholders by issuing a press release, filing materials with the SEC or otherwise. The Company shall solicit from the stockholders of the Company proxies in favor of the adoption of this AgreementStockholder Resolutions in accordance with applicable law, use its reasonable best efforts to obtain the Company Stockholder Approval and shall submit the proposal to adopt this Agreement to the stockholders Stockholder Resolutions for a vote of the Company Company’s stockholders at the Company Stockholders Stockholder Meeting. The Company shall ensure that all proxies solicited in connection with use commercially reasonable efforts to secure the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote Approval at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents If approval of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve is required under DGCL in order to consummate the Merger:
(a) As promptly as practicable following the Acceptance Time and adopt the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement at Agreement, if applicable, the Company Stockholders shall prepare and file as promptly as practicable with the SEC a proxy or information statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement shall include before it is filed with the SEC and the Company Board Recommendationshall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel with the intention that the Proxy Statement be in a form ready to print and mail to the stockholders of the Company as promptly as practicable following the Acceptance Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable. Parent and Purchaser will provide to the Company any information with respect to Parent and Purchaser and their respective officers, directors, Affiliates and agents required to be provided in the Proxy Statement under applicable Laws or as reasonably requested by the Company. The Company shall solicit from include in the Proxy Statement the recommendation of the Company Board of Directors that stockholders of the Company proxies vote in favor of the adoption of this Agreement, use its reasonable best efforts to obtain Agreement in accordance with the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders MeetingDGCL. The Company shall ensure respond promptly to any comments made by the SEC or its staff with respect to the Proxy Statement. The Company shall provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance or its counsel may receive from time to time from the SEC or its staff with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment respect to the Proxy Statement is provided to promptly after the Company’s stockholders receipt of such comments, and any written or (B) iforal responses thereto. Parent, as of Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses before they are submitted to the time for which SEC or its staff and the Company Stockholders Meeting is scheduledshall give due consideration to all reasonable additions, there are insufficient shares of Company Common Stock represented (either deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in person the Proxy Statement if and to the extent that it shall have become false or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn misleading in any material respect or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) , and the Company Stockholders Meeting shall not further agrees to cause the Proxy Statement, as so corrected (if applicable), to be adjourned or postponed filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement as provided in Section 1.11(b)(ii), mailed to a date on or after two (2) Business Days prior holders of Shares, in each case as and to the Outside Date; and extent required by the Exchange Act or the SEC (zor its staff).
(b) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of The Company, acting through the Company entitled to notice Board of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheldDirectors, conditionedshall, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3and subject to the requirements of applicable Law:
(i) (A) as promptly as practicable following the Acceptance Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, the Parties agree to cooperate if applicable, duly set a record date for, call and use their reasonable best efforts to defend against any efforts by any give notice of a special meeting of the Company’s stockholders or any other Person to prevent (the Company Stockholder Approval from being obtained. The Company, “Special Meeting”) for the purpose of considering and taking action upon this Agreement (with the record date and meeting date set in consultation with ParentPurchaser), and (B) as promptly as practicable following the Acceptance Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, convene and hold the Special Meeting; and
(ii) cause the definitive Proxy Statement to be mailed to its stockholders.
(c) At the Special Meeting or any postponement or adjournment thereof, Parent shall fix a record date for determining the stockholders vote, or cause to be voted, all of the Company entitled to notice ofShares then owned by it, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date Purchaser or establish a different record date for the Company Stockholders Meeting without the prior written consent any of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent their respective Subsidiaries in favor of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid and to deliver or become payable to the named executive officers of the Company in connection with the Merger and matters of procedureprovide, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole a stockholder of Merger Sub Inc. in accordance with the Company, any other approvals that are required by the DGCL and any other applicable Law and to effect the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementMerger.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws under Applicable Law to call, give notice of and the Organizational Documents hold a meeting of the holders of Common Stock (the “Company Stockholders”) to duly give notice of, convene consider and hold (in person or virtually, in accordance with applicable Law) vote to approve the Company Stockholders Stockholder Matters pursuant to the terms of this Agreement (such meeting, the “Company Stockholder Meeting” and such approval, to the “Requisite Stockholder Approval”). The Company Stockholder Meeting shall be held as promptly as reasonably practicable following after the clearance of date that the definitive Proxy Statement by is filed with the SEC and the Registration Statement is declared effective by the SEC (Commission, and in any event will use reasonable best efforts to convene no later than 45 days after such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendationdate. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its take reasonable best efforts measures to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Stockholder Meeting are solicited in compliance with any applicable LawsApplicable Law. Notwithstanding anything The Company shall regularly provide updates to Amazon on voting totals with respect to the contrary contained Company Stockholder Matters. The Company Stockholder Meeting will be postponed or adjourned in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to accordance with the Company’s stockholders bylaws or (B) if, as of the time for which otherwise required by Applicable Law if the Company Stockholders Meeting determines that in good faith (after reasonable consultation with Amazon) (w) it is scheduledprobable that the proposals regarding the Company Stockholder Matters will not pass, (x) there are is an insufficient number of shares of Company Common Stock present or represented (either in person or by proxy) to constitute a quorum necessary proxy at the Company Stockholder Meeting to conduct business at such the Company Stockholders Stockholder Meeting, (y) the Company is required to postpone or adjourn the Company Stockholder Meeting and by Applicable Law or a request from the Commission or its staff, or (iiz) may it is necessary or appropriate to postpone or adjourn or postpone the Company Stockholder Meeting in order to give the Company Stockholders Meeting with the written consent of Parent if, as of the sufficient time for which to evaluate any supplemental information or disclosure that the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person has sent or by proxy) otherwise made available to obtain the Company Stockholder Approvalthem; provided, however, that (x) unless otherwise agreed to by the Parties, date of the Company Stockholders Stockholder Meeting shall may not be postponed or adjourned or postponed to a date that is more than ten (10) Business Days after an aggregate of 30 days in connection with any postponement or adjournment. If the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall Requisite Stockholder Approval is not be adjourned obtained at or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for at Amazon’s request cause an additional Company Stockholder Meeting to be held every 12 months thereafter until the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers earlier of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to time such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement Requisite Stockholder Approval is obtained or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders MeetingExpiration Time.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. Subject to the fiduciary duties of the Company Board under applicable law, in addition to the solicitation of stockholder approval required under Section 6.6, if requested by Parent in writing (a “Meeting Request”) at any time during the Option Period, the Company shall (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents cause a meeting of the Company to duly give notice of, convene and hold Stockholders (in person or virtually, in accordance with applicable Law) the Company a “Stockholders Meeting”), to be held as promptly as reasonably practicable following called for purposes of approving, reapproving or ratifying the clearance Merger and this Agreement, or (b) circulate a solicitation for written consent in lieu of such Stockholders Meeting for the Proxy Statement by same purposes. In the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts that Parent delivers a Meeting Request pursuant to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with this Section 6.3, the Company Board shall recommend that cause a Stockholders Meeting to be held on such date as may be reasonably requested by Parent and set forth in the Meeting Request and is consistent with the Company’s bylaws and applicable law, and shall distribute on a timely basis to all stockholders of the Company approve any soliciting materials relating to such meeting (including a Joint Statement in accordance with Section 6.4 below, and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreementany other information statement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreementproxy statement or prospectus prepared by Parent and, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary such information statement or proxy statement relates to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Merger, reasonably approved by the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or ). Subject to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders fiduciary duties of the Company entitled to notice ofBoard under applicable law, and to vote atany such information statement, proxy statement or prospectus shall be distributed together with a copy of the recommendation of the Company Board that the Company Stockholders vote “FOR” the approval and adoption of the Merger and this Agreement. In the event that Parent circulates a solicitation for written consent in lieu of such Stockholders Meeting, the Company shall not change distribute to the Company Stockholders, together with such record date or establish a different record date for written consent, any materials that would have been required to be distributed to the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company a Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as As promptly as reasonably practicable following the clearance date of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC this Agreement (and in any event will use reasonable best efforts to convene such meeting within forty-five ten (4510) days thereofBusiness Days). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend prepare and file as promptly as practicable with the Securities and Exchange Commission (the “SEC”) a proxy for a special meeting of the Company’s stockholders (the “Special Meeting”) (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel with the intention that the Proxy Statement be in a form ready to print and mail to the stockholders of the Company approve as promptly as practicable following the date of this Agreement. Parent and adopt this Agreement at Merger Sub shall promptly furnish to the Company Stockholders Meeting in writing all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Proxy Statement. Subject to Section 5.2(c) hereof, the Company shall include in the Proxy Statement shall include the recommendation of the Company Board Recommendation. The Company shall solicit from of Directors that stockholders of the Company proxies vote in favor of the adoption of this Agreement, Agreement in accordance with the DGCL (the “Company Recommendation”) and the opinion of the Company Financial Advisor referred to in Section 3.19. The Company shall use its reasonable best efforts to obtain and furnish the Company Stockholder Approval and submit information required to be included by the proposal SEC in the Proxy Statement and, after consultation with Merger Sub, respond promptly to adopt this Agreement any comments made by the SEC with respect to the stockholders of the Company at the Company Stockholders MeetingProxy Statement. The Company shall ensure provide Parent, Merger Sub and their counsel with copies of any written comments, and shall inform them of any oral comments, that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance or its counsel may receive from time to time from the SEC or its staff with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment respect to the Proxy Statement is provided promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review any such written responses and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to the Company’s stockholders or (B) if, as of unless it has first obtained the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent ifand Merger Sub to such mailing, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without The Company, on the prior written consent of one hand, and Parent and Merger Sub, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal further agrees to such stockholders in connection cause the Proxy Statement, as so corrected (if applicable), to be filed with the Company Stockholders Meeting or otherwise (including SEC and, if any proposal inconsistent with such correction is made following the adoption of this Agreement or the consummation mailing of the TransactionsProxy Statement as provided in Section 1.6(b)(ii), mailed to holders of shares (the “Shares”) and (ii) the Company shall not call any meeting of the stockholders common stock, par value $0.01 per share, of the Company (the “Common Stock”), in each case as and to the extent required by the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”) or solicit any other stockholder action by written consent) other than the Company Stockholders MeetingSEC (or its staff).
(b) Without limiting The Company, acting through the generality Company Board of Directors, shall, in accordance with and subject to the requirements of applicable Law:
(i) (A) as promptly as practicable following the date of this Agreement set a record date for, call and give notice of the foregoing, unless Special Meeting for the purpose of considering and taking action upon this Agreement shall have been terminated pursuant to Article VIII(with the record date and meeting date set in consultation with Merger Sub, with the meeting date being no later than thirty (30) Business Days following the earliest of the date on which the SEC staff advises the Company agrees that its obligations to call, give notice ofit has no further comments on the Proxy Statement (or that the SEC staff advises that it is not reviewing the Proxy Statement) or that the Company may commence mailing the Proxy Statement); and (B) as promptly as practicable following the date of this Agreement, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.Special Meeting;
(cii) Immediately after cause the execution definitive Proxy Statement to be mailed to its stockholders; and
(iii) use its reasonable best efforts to: (A) solicit from its stockholders proxies in favor of the adoption of this Agreement, Parent shall duly adopt this Agreement in its capacity as ; and (B) secure any approval of stockholders of the sole stockholder of Merger Sub Inc. in accordance with Company that is required by the DGCL and any other applicable Law and to effect the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this AgreementMerger.
Appears in 1 contract
Sources: Merger Agreement (Teradyne, Inc)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and the Organizational Company Governing Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) a meeting of its stockholders for the purpose of obtaining the Company Stockholders Meeting, Stockholder Approval to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will shall use reasonable best efforts to convene such meeting within forty-five (45) 60 days thereof). Except where a Company Change of Recommendation has been made in compliance with as permitted by Section 6.3, the Company Board shall recommend that the stockholders Company Stockholders vote in favor of the Company approve approval of the Merger and adopt this Agreement the other Transactions at the Company Stockholders Meeting and the Company Board shall solicit from the Company Stockholders proxies in favor of the approval of the Merger and the other Transactions, and the Proxy Statement shall include a statement to the effect that the Company Board has resolved to make the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If As reasonably requested by Parent, the Company shall use its commercially reasonable efforts to promptly provide Parent with all the requested voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders Company Stockholders with respect thereto. Notwithstanding anything to the contrary contained in this Agreement, the Company (a) shall be required to adjourn or postpone the Company Stockholders Meeting (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company Stockholders or (ii) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (b) may, and at the request of Parent shall, adjourn or postpone the Company Stockholders Meeting if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that unless otherwise agreed to by the parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than 30 days after the date for which the meeting was previously scheduled (it being understood that such Company Stockholders Meeting shall be adjourned or postponed every time the circumstances described in the foregoing clauses (a)(i) and (a)(ii) exist, and such Company Stockholders Meeting may be adjourned or postponed every time the circumstances described in the foregoing clause (b) exist); and provided, further, that the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two Business Days prior to the End Date. In the event of any postponement or adjournment in which there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum or obtain the Company Stockholder Approval, the Company shall use reasonable best efforts to ensure such a quorum and approval at the Company Stockholders Meeting following such postponement or adjournment. Unless there has been a Company Change of Recommendation made in accordance with as permitted by Section 6.36.3(d)(iii), the Parties agree to Company and Parent shall cooperate in responding, and shall use their reasonable best efforts to defend against respond, as promptly as reasonably practical, to any efforts public statement by any of the Company’s stockholders Company Stockholder or any other Person in opposition of the Transactions or otherwise intended to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix Once the Company has established a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as , unless required to do so by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid Law or become payable to the named executive officers of the Company Governing Documents or in connection with the Merger and matters a postponement or adjournment of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless as required or permitted hereunder. Unless this Agreement shall have has been terminated pursuant to in accordance with Article VIIIVIII hereof, the Company agrees that its Company’s obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to in accordance with this Section 6.5 shall not be limited or otherwise affected by the making making, commencement, disclosure, announcement or submission of a any Company Superior Proposal or Company Competing Proposal, or by any Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosureRecommendation, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or by the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Company shall shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Laws Law, the rules of The NASDAQ Global Select Market and the Organizational Documents Restated Certificate of Incorporation and the Bylaws of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (in person or virtually, the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereofSection 6.6(c). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders board of directors of the Company approve and adopt shall make the Company Recommendation with respect to the adoption of this Agreement at the Company Stockholders Meeting and the Proxy Statement approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies Common Stock beneficially owned by Parent or Acquisition Sub in favor of the adoption of this Agreement, use its reasonable best efforts to obtain Agreement the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders approval of the Company Merger and the approval of the Recapitalization at the Company Stockholders Stockholders’ Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to Company, after consultation with Parent, may adjourn or postpone the Company Stockholders Stockholders’ Meeting (Ai) to the extent as necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or within a reasonable amount of time in advance of the Stockholders’ Meeting, (Bii) if, if as of the time for which the Company Stockholders Stockholders’ Meeting is scheduled, originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and the Stockholders’ Meeting, (iiiii) may adjourn if required by applicable Law or postpone (iv) if in the good faith judgment of the board of directors of the Company Stockholders (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the written consent of Parent if, as fiduciary duties of the time for which members of the board of directors of the Company Stockholders Meeting is scheduledunder applicable Law. Subject to the provisions of this Agreement, there are insufficient shares the Company will use reasonable best efforts to solicit from holders of Company Common Stock represented (either proxies in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect favor of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be and the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers approval of the Company in connection with the Merger and matters of proceduretransactions contemplated hereby, including any adjournment proposal) that the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company shall propose to be acted on Common stock required by the stockholders rules of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal NASDAQ Global Select Market or applicable Laws to obtain such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meetingapprovals.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
Appears in 1 contract
Stockholders Meeting. (a) The Company Detective shall take all action necessary in accordance with applicable Laws as promptly as practicable following the date of this Agreement call and the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, cause to be held as promptly as reasonably practicable following a stockholders meeting for the clearance purpose of approving the Merger and the issuance of the Proxy Statement by the SEC Detective Shares and the Registration Statement is declared effective Lynx Option and the other matters contemplated by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3this Agreement including, without limitation, the Company Board Amended and Restated Certificate of Incorporation of Detective, which shall recommend that be in form and substance reasonably satisfactory to Detective and Lynx (the stockholders "Amended Charter"), and the election of the Company approve Post-Closing Directors. In connection therewith, subject to Section 6.03(b), the Board of Directors of Detective shall declare advisable and adopt this Agreement at recommend the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders approval of the Company proxies in favor Merger, the Amended Charter, the election of the adoption Post-Closing Directors to Detective's Board of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval Directors and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited such other matters necessary in connection with the Company Stockholders Meeting are solicited consummation of the transactions contemplated herein, and shall prepare and file with the SEC under the Exchange Act, and shall use all reasonable efforts to have promptly cleared by the SEC, and promptly thereafter shall mail to its stockholders, the proxy materials, as they may be amended and supplemented, to be used in compliance connection with such stockholder meeting (the "Proxy Material"). Detective shall provide Lynx with a reasonable opportunity to review and comment upon the Proxy Material prior to its filing with the SEC and distribution to Detective's stockholders. Detective shall promptly and properly prepare and file any applicable Laws. Notwithstanding anything other filings required under the Exchange Act or any other Federal or state laws relating to the contrary contained in this Agreementtransactions contemplated herein (collectively, the Company (i) "Other Filings"). Detective shall be required to adjourn notify Lynx promptly of the receipt of any comments of the SEC and of any request by the SEC for amendments or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment supplements to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person Material or by proxy) any other governmental official with respect to constitute a quorum necessary to conduct business at such Company Stockholders Meeting any Other Filings or for additional information and (ii) may adjourn or postpone will supply Lynx with copies of all correspondence between Detective and its representatives, on the Company Stockholders Meeting with one hand, and the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company SEC or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status members of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders its staff or any other Person appropriate government official, on the other hand, with respect to prevent the Company Stockholder Approval from being obtainedProxy Material and any Other Filings. The CompanyDetective shall obtain and furnish the information required to be included in the Proxy Material and any Other Filings; and Detective, in after consultation with ParentLynx, shall fix a record date for determining the stockholders of the Company entitled (and Lynx agrees to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company reasonably cooperate with Detective in connection with the Merger and matters of procedure, including any adjournment proposaltherewith) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.respond promptly
Appears in 1 contract
Sources: Agreement and Plan of Merger (Data Broadcasting Corporation)
Stockholders Meeting. (a) The Company shall take all action necessary in accordance with applicable Laws and will call a meeting of its stockholders (the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law"Stockholders' Meeting") the Company Stockholders Meeting, to be held as promptly as reasonably practicable following for the clearance purpose of voting upon the Proxy Statement by the SEC Merger Agreement and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene such meeting within forty-five (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Merger Agreement to the its stockholders of the Company for a vote at the Company Stockholders such Stockholders' Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreementnot, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or (B) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld), conditioned postpone or delayed). Without adjourn the prior written consent of Parent or as required by applicable Law, (i) the adoption of Stockholders' Meeting unless this Merger Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable terminated prior to the named executive officers date thereof. The Company, through its Board of Directors, subject to the fiduciary duties of the Board of Directors of the Company in connection or the Special Committee after consultation with counsel, will recommend approval of the Merger and matters of procedureAgreement to the Company's stockholders; provided, including however, that at any adjournment proposal) that time at or prior to -------- ------- the Company shall propose to be acted on by Stockholders' Meeting either the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement Special Committee or the consummation Board of the Transactions) and (ii) the Company shall not call any meeting of the stockholders Directors of the Company (or solicit any other stockholder action by written consentboth the Board of Directors and the Special Committee) other than may revoke, modify or qualify its recommendation with respect to the Merger Agreement if the Board of Directors of the Company Stockholders Meeting.
or the Special Committee determines in good faith (bafter consultation with legal counsel) Without limiting that failure to revoke, modify or qualify such recommendation would create a material risk of liability for breach of its fiduciary duties. At the generality Stockholders' Meeting (and at any adjournment or postponement thereof), Parent will vote or cause to be voted in favor of approval and adoption of the foregoingMerger Agreement and approval of the Merger all of the outstanding shares of Class B Common Stock; provided, unless this Agreement shall have been terminated pursuant -------- however, that if such recommendation of the Special Committee is revoked, ------- modified or qualified in a manner adverse to Article VIIIParent, the Company agrees that its obligations to callParent may, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 but shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant obligated to, cause such shares to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Eventso voted.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
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Stockholders Meeting. Subject to the duties of each of the Company’s directors under applicable Law, the Company, acting through the Company Board (a) The Company shall or a committee thereof), shall, as promptly as practicable following confirmation by the SEC that the SEC has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Laws required under the MGCL and its Constituent Documents and the Organizational Documents applicable requirements of the Company NYSE necessary to promptly and duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following the clearance of Stockholders Meeting; provided, that the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC (and in any event will use reasonable best efforts to convene Company may postpone or adjourn such meeting within forty-five solely (45) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with any applicable Laws. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (Aa) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or by applicable Law, (Bb) if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent ifParent, as of (c) to allow reasonable additional time to solicit additional proxies to the time for which extent the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either reasonably believes necessary in person or by proxy) order to obtain the Requisite Company Stockholder ApprovalVote or (d) in the absence of a quorum; provided, howeverthat in the case of clause (c) or (d), that (x) unless otherwise agreed to by without the Partieswritten consent of Parent, in no event shall the Company Stockholders Meeting shall not (as so postponed or adjourned) be adjourned or postponed to held on a date that is more than ten thirty (1030) Business Days days after the date for which the meeting Stockholders Meeting was previously scheduled except as may be required by applicable Law; (y) originally scheduled. Unless the Company Stockholders Meeting Board or any committee thereof has withdrawn the Company Recommendation in compliance with Section 6.01, the Company, through the Company Board, shall not be adjourned or postponed recommend to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders holders of the Company entitled to notice Shares that they vote in favor of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, Merger and the Company shall promptly provide Parent with all voting tabulation reports relating use commercially reasonable efforts to solicit the Requisite Company Stockholders Meeting that have been prepared Vote (including by the Company or soliciting proxies from the Company’s transfer agent, proxy solicitor or other Representative, and stockholders). The Company shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect theretoto proxy solicitation results as reasonably requested by Parent. Unless there has been a Company Change of Recommendation made this Agreement is terminated in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable LawARTICLE VIII, (ix) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit to the vote of its stockholders any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) Acquisition Proposal and (iiy) the Company shall not call any meeting of the stockholders obligation of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to duly call, give notice of, convene and hold the Company Stockholders Meeting pursuant and mail the Proxy Statement (and any amendment or supplement thereto that may be required by Law) to this Section 6.5 the Company’s stockholders shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening EventRecommendation.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
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Stockholders Meeting. (a) The Company shall take all action necessary actions in accordance with applicable Laws law, the Trading Market, the Company’s certificate of incorporation and the Organizational Documents of the Company Company’s bylaws to promptly and duly call, give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the Company Stockholders Meeting, to be held as promptly as reasonably practicable following practicable, and in any event within thirty (30) calendar days after the clearance of the Proxy Statement Statement, its Stockholders Meeting for the purpose of considering and voting upon the approval of the Charter Amendments. To the fullest extent permitted by applicable law, (i) the Board of Directors shall recommend approval of the Charter Amendments by the SEC stockholders of the Company and include such recommendation in the Registration Proxy Statement is declared effective by and (ii) neither the SEC (and in Board of Directors, nor any event will committee thereof, shall effect a Change of Recommendation. The Company shall use its reasonable best efforts (including by retaining a proxy solicitation firm) to solicit from its stockholders proxies in favor of the Charter Amendments, and to secure the votes or consents of the stockholders that are required by the rules of the Trading Market, or the Delaware General Corporation Law.
(b) The Company shall call, give notice of, convene and hold the Stockholders Meeting in accordance with this Section 4.10. The Company shall submit the Charter Amendments to its stockholders for the purpose of acting upon such meeting within forty-five (45) days thereof). Except where a Company Change proposal whether or not the Board of Recommendation has been made in compliance with Section 6.3Directors at any time subsequent to the date of this Agreement determines, that the Company Board shall recommend proposal is no longer advisable or recommends that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendationreject such proposal. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts to obtain the Company Stockholder Approval and submit the proposal to adopt this Agreement to the stockholders of the Company at the Company Stockholders Meeting. The Company shall ensure that all proxies solicited in connection with the Company its Stockholders Meeting are solicited solicited, in compliance with any the Delaware General Corporation Law, the Trading Market, the Company’s certificate of incorporation and the Company’s bylaws and all other applicable Lawslegal requirements. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall be required to Company, after receiving written consent of Purchaser, may adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to the Company’s its stockholders or (B) ifor, if as of the time for which the Company Stockholders Meeting is scheduledoriginally scheduled (as set forth in the Proxy Statement), there are insufficient shares of Company Common Stock and Preferred Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such Company Stockholders Meeting and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which Stockholders Meeting.
(c) Following the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable deliver to the named executive officers Corporate Secretary of Purchaser a certificate setting forth the Company in connection with voting results from the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders in connection with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption of this Agreement or the consummation of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.
(b) Without limiting the generality of the foregoing, unless this Agreement shall have been terminated pursuant to Article VIII, the Company agrees that its obligations to call, give notice of, convene and hold the Company Stockholders Meeting pursuant to this Section 6.5 shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening Event.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
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Sources: Stock Purchase Agreement (Harbor BioSciences, Inc.)
Stockholders Meeting. (a) The As promptly as practicable following the date hereof and the date on which the SEC shall clear (whether orally or in writing) the Proxy Statement/Prospectus and, if required by the SEC as a condition to the mailing of the Proxy Statement/Prospectus, the Company Registration Statement shall have been declared effective, the Company shall take all action necessary in accordance with applicable Laws and call a special meeting of its stockholders (the Organizational Documents of the Company to duly give notice of, convene and hold (in person or virtually, in accordance with applicable Law) the “Company Stockholders Meeting, ”) to be held as promptly as reasonably practicable following for the clearance purpose of the Proxy Statement by the SEC and the Registration Statement is declared effective by the SEC voting upon (and in any event will use reasonable best efforts to convene such meeting within forty-five (45i) days thereof). Except where a Company Change of Recommendation has been made in compliance with Section 6.3, the Company Board shall recommend that the stockholders of the Company approve and adopt this Agreement at the Company Stockholders Meeting and the Proxy Statement shall include the Company Board Recommendation. The Company shall solicit from stockholders of the Company proxies in favor of the adoption of this Agreement, use its reasonable best efforts (ii) the amendment of the Company’s certificate of incorporation to obtain increase the number of authorized shares of Company Stockholder Approval Common Stock in connection with the issuance of the Aggregate Merger Consideration and submit (iii) the proposal issuance of shares of Company Common Stock pursuant to adopt this the Merger. This Agreement shall be submitted for adoption to the stockholders of the Company at the Company Stockholders Meetingsuch special meeting. The Company shall ensure that all proxies solicited deliver, or cause to be delivered, to the Company’s stockholders the Proxy Statement/Prospectus in definitive form in connection with the Company Stockholders Meeting are solicited at the time and in compliance with any the manner provided by the applicable Laws. Notwithstanding anything to provisions of the contrary contained in this AgreementDGCL, the Company (i) shall be required to adjourn or postpone the Company Stockholders Meeting (A) to the extent necessary to ensure that any legally required supplement or amendment to the Proxy Statement is provided to Exchange Act and the Company’s stockholders or (B) if, as certificate of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such Company Stockholders Meeting incorporation and (ii) may adjourn or postpone the Company Stockholders Meeting with the written consent of Parent if, as of the time for which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to obtain the Company Stockholder Approval; provided, however, that (x) unless otherwise agreed to by the Parties, the Company Stockholders Meeting shall not be adjourned or postponed to a date that is more than ten (10) Business Days after the date for which the meeting was previously scheduled except as may be required by applicable Law; (y) the Company Stockholders Meeting shall not be adjourned or postponed to a date on or after two (2) Business Days prior to the Outside Date; and (z) no such adjournment or postponement may have the effect of changing the record date for determining the stockholders of the Company entitled to notice of or to vote at the Company Stockholders Meeting without the written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed). If requested by Parent, the Company shall promptly provide Parent with all voting tabulation reports relating to the Company Stockholders Meeting that have been prepared by the Company or the Company’s transfer agent, proxy solicitor or other Representative, bylaws and shall otherwise keep Parent reasonably informed regarding the status of the solicitation and any material oral or written communications from or to the Company’s stockholders with respect thereto. Unless there has been a Company Change of Recommendation made in accordance with Section 6.3, the Parties agree to cooperate and use their reasonable best efforts to defend against any efforts by any of the Company’s stockholders or any other Person to prevent the Company Stockholder Approval from being obtained. The Company, in consultation with Parent, shall fix a record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent or as required by applicable Law, (i) the adoption of this Agreement shall be the only matter (other than a non-binding advisory proposal regarding compensation that may be paid or become payable to the named executive officers of the Company in connection with the Merger and matters of procedure, including any adjournment proposal) that the Company shall propose to be acted on by the stockholders of the Company at conduct the Company Stockholders Meeting and the Company shall not submit any other proposal to such stockholders solicitation of proxies in connection therewith in compliance with the Company Stockholders Meeting or otherwise (including any proposal inconsistent with the adoption such statutes, certificate of this Agreement or the consummation incorporation and bylaws. Table of the Transactions) and (ii) the Company shall not call any meeting of the stockholders of the Company (or solicit any other stockholder action by written consent) other than the Company Stockholders Meeting.Contents
(b) Without limiting the generality The Board of Directors of the foregoingCompany shall recommend that the Company’s stockholders vote in favor of the items in Section 7.4(a)(i)-(iii) (the “Company Board Recommendation”) and shall not withdraw, unless this Agreement shall have been terminated pursuant modify or qualify or publicly propose to Article VIIIwithdraw, modify or qualify, in any manner adverse to Verizon, the Company agrees Board Recommendation, including approving or recommending a Company Acquisition Proposal or a Company Superior Proposal or any other alternative course of action (any such action, a “Change of Board Recommendation”); provided that its obligations the Board of Directors of the Company may make a Change of Board Recommendation pursuant to calland in conformity with Section 7.11(c). For the avoidance of doubt, give notice of, convene the obligation of the Company to call and hold the Company Stockholders Stockholder Meeting pursuant to this for the purpose of voting upon the items in Section 6.5 7.4(a)(i)-(iii) shall not be affected by the making of a Company Change of Recommendation and its obligations pursuant to this Section 6.5 shall not be affected by the commencement, announcement, disclosure, or communication to the Company of any Company Competing Proposal or other proposal (including, as applicable, a Company Superior Proposal) or the occurrence or disclosure of any Company Intervening EventBoard Recommendation.
(c) Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the sole stockholder of Merger Sub Inc. in accordance with applicable Law and the Organizational Documents of Merger Sub Inc. and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.
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