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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 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 in favor of the adoption of this Agreement 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.
Appears in 2 contracts
Samples: Merger Agreement (Danaher Corp /De/), Merger Agreement (Beckman Coulter Inc)
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 DirectorsBoard, shall, shall take all actions in accordance with applicable law, its Certificate of Incorporation and subject By-laws to the requirements of applicable Law promptly and this Agreement (including Section 5.2 duly call, give notice of, convene and Section 8.1):
(i) (A) hold as promptly as reasonably practicable following the Appointment Time, duly set a record date forpracticable, and take all action necessary in accordance with any event within 45 days after the DGCL and declaration of effectiveness of the Registration Statement, the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) Stockholders Meeting for the purpose of considering and taking action voting upon this Agreement the Company Voting Proposal. Subject to Section 6.1(b), to the fullest extent permitted by applicable law, (i) the Company Board shall recommend approval and adoption of the Merger (with Company Voting Proposal by the record date stockholders of the Company and meeting date set include such recommendation in consultation with Purchaser)the Proxy Statement/Prospectus, and (B) as promptly as reasonably practicable following the 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 neither the Appointment TimeCompany Board nor any committee thereof shall withdraw or modify, file or propose or resolve to withdraw or modify in a manner adverse to the definitive Proxy Statement with Parent, the SEC and cause recommendation of the Proxy Statement Company Board that the Company’s stockholders vote in favor of the Company Voting Proposal. Subject to be mailed to its stockholders; and
(iii) the Company Board’s duty of disclosure, the Company shall use its reasonable best efforts to (A) 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 and (B) secure any approval of the stockholders of the Company that is required by the rules of the DGCL and to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with the Parent, may adjourn or postpone the Company Stockholders Meeting to the extent necessary to ensure that any other applicable Law required supplement or amendment to effect the MergerProxy Statement/Prospectus is provided to the Company’s stockholders or, if as of the time for which the Company Stockholders Meeting is 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 of the Company Stockholders Meeting.
(cb) At The Company shall call, give notice of, convene and hold the Special Company Stockholders Meeting 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 (i) the Company Board at any postponement time subsequent to the date hereof determines, in the manner permitted by Section 6.1(b) that the Company Voting Proposal is no longer advisable or adjournment thereof, Parent shall voterecommends that the stockholders of the Company reject such proposal, or cause (ii) any actual, potential or purported Acquisition Proposal or Superior Proposal has been commenced, disclosed, announced or submitted 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 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.
Appears in 2 contracts
Samples: Merger Agreement (Icoria, Inc.), Merger Agreement (Clinical Data Inc)
Stockholders Meeting. If (a) If, after the Acceptance Time, approval of the stockholders of the Company Stockholders is required under the DGCL in order applicable Law to consummate the Merger, the Company shall, in accordance with and to the extent permitted by applicable Law:
(ai) As promptly as soon as practicable following the Appointment Acceptance Time, establish a record date for, duly call, give notice of, convene and hold a special meeting of the Company shall Stockholders (the “Stockholders Meeting”) for the purpose of considering and taking action upon this Agreement and approving the Merger;
(ii) as soon as practicable following the Acceptance Time, prepare and file with the SEC a preliminary proxy for statement relating to the Special Meeting Merger and this Agreement (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 by the SEC to be included by the SEC in the such Proxy Statement and, after consultation with PurchaserParent, 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 5.2, include in the Proxy Statement the Company Board Recommendation that Stockholders vote in favor of the approval and adoption of this Agreement and the Merger; and
(iv) subject to Section 5.2, use its reasonable best efforts to obtain the necessary approvals of the Merger and this Agreement by the Stockholders.
(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 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 filing. Parent and Merger Sub shall promptly furnish to the Company 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 shall provide Parent, Purchaser Parent and their its counsel in writing with copies of any written comments, and shall inform them of any oral comments, comments or other 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 (and any amendments or supplements thereto) promptly after the Company’s receipt of such comments, and any written comments 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 other communications.
(c) Parent and Purchaser, on the other hand, agree to 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 have 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 as otherwise required 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 applicable Lawsthis 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 further 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 cause the Proxy Statement, as so corrected notify Parent and Merger Sub at least three (if applicable), 3) days prior 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 (or any amendment or supplement thereto) to the extent required by the Exchange Act or the SEC (or its staff)Stockholders.
(bd) The Company, acting through Parent and Merger Sub each agree that at 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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the Appointment Time, convene and hold the Special Stockholders 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 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 they will vote, or cause to be voted, all of the Shares then beneficially owned by it, Purchaser or any of their other Subsidiaries them in favor of the approval of the Merger and the adoption of this Agreement 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 MergerAgreement.
Appears in 2 contracts
Samples: Merger Agreement (Amylin Pharmaceuticals Inc), Merger Agreement (Bristol Myers Squibb Co)
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 TimeTime and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, the Company 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 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 counselcounsel 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. Subject to Section 5.2, the 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 it shall have become false or misleading in any material respect or as otherwise required by applicable Lawslaw and, 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):law:
(i) (A) as promptly as reasonably practicable following the Appointment TimeTime 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, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering considering, approving and taking action upon adopting this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the Appointment TimeTime 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 adjourn or postpone the Special Meeting in accordance with Purchaser’s direction)Meeting;
(ii) as promptly as reasonably practicable following the Appointment Time, file cause the definitive Proxy Statement with the SEC and cause the 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 subsidiaries and affiliates in favor of the adoption of this Agreement 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 law to effect the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Altra Holdings, Inc.), Merger Agreement (Tb Woods Corp)
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 TimeTime and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, the Company 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 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 counselcounsel 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. Subject to Section 5.2, the 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 it shall have become false or misleading in any material respect or as otherwise required by applicable Lawslaw and, 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):law:
(i) (A) as promptly as reasonably practicable following the Appointment TimeTime 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, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the Appointment TimeTime 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 adjourn or postpone the Special Meeting in accordance with Purchaser’s direction)Meeting;
(ii) as promptly as reasonably practicable following the Appointment Time, file cause the definitive Proxy Statement with the SEC and cause the 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 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 subsidiaries and affiliates in favor of the adoption of this Agreement 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 law to effect the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Redback Networks Inc), Agreement and Plan of Merger (Ericsson Lm Telephone Co)
Stockholders Meeting. If approval The Company shall duly call, give notice of, convene and hold a meeting of its stockholders (including any adjournment or postponement thereof) (the stockholders of the Company is required under the DGCL in order to consummate the Merger:
(a“Stockholders’ Meeting”) As as promptly as practicable following after the Appointment Timedate the Registration Statement is declared effective under the Securities Act (except as provided in this Section 7.03) for the purpose of voting on the Company Proposals. In connection with the Stockholders’ Meeting, subject to Section 7.02(b), 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 materialsCompany, 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 acting through the Company Board, 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 (i) recommend the adoption of this Agreement and approval of the other Company Proposals by the Company’s stockholders in accordance the Joint Proxy Statement/Prospectus, (ii) otherwise comply with the DGCL. The all legal and Nasdaq requirements applicable to such meeting, (iii) regardless of whether or not there has been a Company shall Adverse Recommendation Change, 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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 to be mailed to its stockholders; and
(iii) use its reasonable best efforts to (A) 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 (B) secure any approval of stockholders of the other Company that is required by Proposals and (iv) subject to the DGCL and any parenthetical in the immediately preceding clause (iii), take all other applicable Law actions reasonably necessary or advisable 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 in favor of secure the adoption of this Agreement and to deliver or provide, in its capacity as a stockholder 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 Board or any committee thereof from making a Company Adverse Recommendation Change in compliance with this Agreement. The Company shall 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 results of all proxy tabulations provided by such proxy soliciting agent to the Company. 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 shall have the right to adjourn or postpone the Stockholders’ Meeting: (1) after consultation with the Investors, for not more than two (2) periods not to exceed ten (10) Business Days each if on the date on which the 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 of the Stockholders’ Meeting; or (3) after consultation with the Investors, if the failure to adjourn or postpone the Stockholders’ Meeting would reasonably be expected to be a violation of applicable Law for the distribution of any required amendment or supplement to the Joint Proxy Statement/Prospectus to be timely provided to the holders of Company Common Stock. Once the Company has established a record date for the Stockholders’ Meeting, the Company shall not change such record date or establish a different record date for the Stockholders’ Meeting without the prior written consent of the Investors (not to be unreasonably withheld, delayed or conditioned), unless required to do so by applicable Law or the Company’s organizational documents. Without the prior written consent of the Investors, the adoption of this Agreement and approval of the other approvals that are Company Proposals shall be the only matters (other than matters of procedure, including a motion to adjourn in accordance with the terms of this Agreement, and matters required by the DGCL and any other applicable Law to effect be voted on by the MergerCompany’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 Stockholders’ Meeting.
Appears in 2 contracts
Samples: 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 reasonably practicable following the Appointment TimeClosing Date, 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 with the Commission. JLL shall cooperate, and provide to, the Company all such information as may be necessary or appropriate regarding the Purchasers for inclusion in the Proxy Statement. The Company shall, as promptly as practicable after receipt thereof, provide JLL copies of any written comments and advise JLL of any oral comments, with respect to the Proxy Statement received from the Commission. The Company shall advise JLL of any request by the Commission for amendment of the Proxy Statement. If at any time any information relating to Company 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 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 circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by Law, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC Commission and disseminated to the stockholders of the Company.
(b) The Company shall 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 give due consideration to use all reasonable additionsefforts to cause such stockholders' meeting to be held within 120 days following the Closing Date. In connection with the Company's stockholders' meeting, deletions (i) the Company shall mail the Proxy Statement to its stockholders, (ii) the Board of Directors shall recommend to its stockholders the approval of the Stockholder Proposal, and (iii) the Board of Directors and officers of the Company shall use their commercially reasonable efforts to obtain the Requisite Stockholder Approval.
(c) The Company covenants that (i) the 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 Section 5.4(c) will not apply to statements or omissions included in the Proxy Statement based upon information furnished in writing to the Company by the Purchasers specifically for use therein.
(d) In the event (i) the Board of Directors or any committee thereof withdraws, modifies, changes suggested thereto 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 Parentthe Company's stockholders of the Stockholder Proposal, Purchaser within three business days of JLL's request therefor, the Board of Directors fails to reaffirm publicly and their counsel. Subject unconditionally its recommendation to Section 5.2the Company's stockholders of the Stockholder Proposal, the Company shall include 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 Proxy Statement amount set forth in 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. preceding sentence to such bank account as may be designated by JLL.
(e) The Company shall use its reasonable best efforts to obtain persuade Blue Cross and furnish the information required to be included by the SEC in the Proxy Statement andBlue Shield of Texas, 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 a division 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)Health Care Service Corporation, to be filed with the SEC andexecute and deliver, if any such correction is made following 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 provided Exhibit D or as otherwise agreed upon in Section 1.9(b)(ii)good faith by the Company and JLL.
(f) JLL shall, mailed to holders and shall cause any other Purchaser or any Person controlled by JLL or any Purchaser to, vote all of Shares, in each case as and its shares of Preferred Stock (to the extent required by the Exchange Act or the SEC (or its staff).
(bany such shares are entitled to vote thereon) 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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 to be mailed to its stockholders; and
(iii) use its reasonable best efforts to (A) solicit from its stockholders proxies Common Stock in favor of the adoption of this Agreement and (B) secure Stockholder Proposal at any approval of stockholders meeting of the Company that is required by the DGCL and any other applicable Law to effect the MergerCompany's stockholders with respect thereto.
(cg) At The Company shall use its reasonable efforts to set the Special Meeting or any postponement or adjournment thereof, Parent shall vote, or cause record date for the stockholders' meeting at which the Stockholder Proposal will be considered prior 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 and to deliver or provide, in its capacity as a stockholder of the Company's earnings release for the quarter ended September 30, any other approvals that are required by the DGCL and any other applicable Law to effect the Merger2000.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Advance Paradigm Inc), Securities Purchase Agreement (Littlejohn Joseph & Levy Fund Iii Lp)
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 (and in any event within 15 business days) after the Appointment Timedate hereof, the Company shall prepare and file with the SEC Securities and Exchange Commission (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 that, except for such portions as may relate to a Competing Proposal, Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement and any amendment or supplement thereto before it is filed with the SEC and the Company shall give due consideration to consider in good faith all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counselParent in connection therewith. Subject to Unless there is a Change of Recommendation in accordance with Section 5.25.2(c), 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 Except for such portions as may relate to a Competing Proposal, 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. Except for such portions as may relate to a Competing Proposal, 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 consider in good faith all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counselParent in connection therewith. 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 Securities Exchange Act of 1934, as amended (the “Exchange Act”), or the SEC (or its staff). The Company shall use its reasonable best efforts to have the Proxy Statement cleared by the SEC as promptly as reasonably practicable.
(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 Timedate hereof, duly set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), with such record date to be selected with the consent of Parent, such consent not to be unreasonably withheld, and (B) as promptly as reasonably practicable following the Appointment Timedate hereof, convene and hold the Special Meeting (and adjourn or postpone Meeting, with the date of the Special Meeting in accordance to be no more than 30 days after the dissemination of the Proxy Statement to the Company’s stockholders and selected with Purchaser’s direction)the consent of Parent, not to be unreasonably withheld;
(ii) as promptly as reasonably practicable (and in any event within five business days) following the Appointment TimeProxy Statement Clearance Date, file the definitive Proxy Statement with the SEC and cause the Proxy Statement to be mailed to its stockholders; and
(iii) unless there is a Change of Recommendation in accordance with Section 5.2(c) of this Agreement, 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 in favor of the adoption of this Agreement 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) Subject to applicable Law and the following proviso, the Company shall not adjourn or postpone the Special Meeting without Parent’s consent (which may be withheld in its sole discretion); provided that without Parent’s consent, the Company may, and Parent may require the Company to, adjourn or postpone the Special Meeting up to two (2) times (for a period of not more than 15 calendar days in the aggregate), unless prior to such adjournment the Company shall have received proxies in respect of an aggregate number of Shares voting for the adoption of this Agreement, which have not been withdrawn, such that the Requisite Stockholder Approval will be obtained at such meeting. Once the Company has established a record date for the Special Meeting, the Company shall not change such record date or establish a different record date for the Special Meeting without the prior written consent of Parent (including, in the event that the Special Meeting is adjourned or postponed in accordance with this Section 1.6), unless required to do so by applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (International Paper Co /New/), Merger Agreement (Temple Inland Inc)
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 TimeTime and the expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance with this Agreement, if applicable, the Company 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 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 counselcounsel 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. Subject to Section 5.2, the 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 it shall have become false or misleading in any material respect or as otherwise required by applicable Lawslaw, 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):law:
(i) (A) as promptly as reasonably practicable following the Appointment TimeTime 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, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the Appointment TimeTime 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 adjourn or postpone the Special Meeting in accordance with Purchaser’s direction)Meeting;
(ii) as promptly as reasonably practicable following the Appointment Time, file cause the definitive Proxy Statement with the SEC and cause the 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 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 subsidiaries and affiliates in favor of the adoption of this Agreement 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 law to effect the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Cytyc Corp), Merger Agreement (Adeza Biomedical Corp)
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 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 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 counselcounsel 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. Subject Parent and Purchaser shall promptly furnish to Section 5.2the 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 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 DGCLDGCL and the opinion of Xxxxxxx Xxxxx referred to in Section 1.2(b). 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 shall not mail any Proxy Statement, or any amendment or supplement thereto, to the Company’s stockholders unless it has first obtained the consent of Parent and Purchaser to such mailing, which consent shall not be unreasonably withheld, conditioned or delayed. 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 it shall have become false or misleading in any material respect or as otherwise required by applicable LawsLaw, 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):Law:
(i) (A) as promptly as reasonably practicable following the Appointment TimeTime 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, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), ; and (B) as promptly as reasonably practicable following the Appointment TimeTime 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 adjourn or postpone the Special Meeting in accordance with Purchaser’s direction)Meeting;
(ii) as promptly as reasonably practicable following the Appointment Time, file cause the definitive Proxy Statement with the SEC and cause the Proxy Statement to be mailed to its stockholders; and
(iii) use its reasonable best efforts to to: (A) solicit from its stockholders proxies in favor of the adoption of this Agreement 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 subsidiaries and affiliates in favor of the adoption of this Agreement 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.
Appears in 2 contracts
Samples: Merger Agreement (Teradyne, Inc), Merger Agreement (Nextest Systems Corp)
Stockholders Meeting. (a) If approval of following the stockholders of the Company Offer Closing it is required under the DGCL in order by Law to consummate the Merger:
(a) As promptly as practicable following the Appointment Time, the Company shall in accordance with applicable Law:
(i) duly call, give notice of, convene and hold a special meeting of its stockholders as soon as reasonably practicable following the Offer Closing Date (or, if later, following the termination of the Subsequent Offering Period, if any) for the purpose of considering and taking action upon this Agreement (the “Company Stockholders Meeting”);
(ii) prepare and file with the SEC a preliminary proxy for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) information statement relating to the Merger and this Agreement; provided, that Parent, Purchaser Agreement 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 (A) to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with PurchaserParent, respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement (together with any amendments and supplements thereto, the “Proxy Statement. The ”) to be mailed to its stockholders as soon as reasonably practicable, which Proxy Statement shall include all information required under applicable Law to be furnished to the stockholders of the Company shall provide Parent, Purchaser in connection with the Merger and their counsel with copies of any written commentsthe Transactions, and shall inform them of any oral comments, that include the Company or its counsel may receive from time to time from Recommendation and the SEC or its staff Fairness Opinion and information 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 opinion 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 disclosed by Item 1015(b) 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 Regulation M-A under the Exchange Act or the SEC (or its staff).
(b) The Company, acting through the Company Board regardless 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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (whether such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaseritem is applicable), and (B) as promptly as reasonably practicable following to obtain the Appointment Timenecessary approvals of this Agreement, convene the Merger and hold the Special Meeting (and adjourn or postpone other Transactions by the Special Meeting in accordance with Purchaser’s direction);
(ii) as promptly as reasonably practicable following stockholders of the Appointment Time, file the definitive Proxy Statement with the SEC and cause the Proxy Statement to be mailed to its stockholdersCompany; and
(iii) use its reasonable best efforts to (A) solicit from its stockholders holders of shares of Company Common Stock proxies in favor of the adoption Merger and take all actions reasonably necessary or, in the reasonable opinion of this Agreement and (B) MergerSub, advisable to secure any the approval of stockholders of the Company that is required by the DGCL DGCL, the Company’s certificate of incorporation and any other applicable Law to effect the Merger.
(cb) At The Company shall ensure that the Special Company Stockholders Meeting or any postponement or adjournment thereofis called, noticed, convened, held and conducted, and that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with applicable Law. Parent shall agrees that it will vote, or cause to be voted, all of the Shares shares of Company Common Stock then owned by it, Purchaser it or any of their other Subsidiaries MergerSub in favor of the approval and the adoption of this Agreement and to deliver or provide, in its capacity as a stockholder Agreement.
(c) Without limiting the generality of the Companyforegoing, any other approvals the Company agrees that are its obligation to duly call, give notice of, convene and hold the Company Stockholders Meeting, as required by this Section 2.09, shall not be affected by the DGCL and any other applicable Law to effect withdrawal, amendment or modification of the MergerCompany Recommendation.
Appears in 2 contracts
Samples: Merger Agreement (Galaxy Dream Corp), Merger Agreement (Rc2 Corp)
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 TimeTime 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 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 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 and Parent shall use its their reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement andand the Company, after consultation with Purchaser, shall respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Purchaser Parent and their its counsel with copies of any written comments, and shall use reasonable efforts to 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 '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 it shall have become false or misleading in any material respect or as otherwise required by applicable Lawslaw and, 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):law:
(i) (A) as promptly as reasonably practicable following the Appointment TimeTime and the expiration of any subsequent offering period provided pursuant to Section 1.1(f), duly set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “"Special Meeting”") for the sole purpose of considering and taking action upon obtaining the approval by the stockholders of the Company of the adoption of this Agreement and in accordance with the Merger DGCL (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the Appointment Time, convene and hold the Special Meeting (and adjourn or postpone the Special Meeting in accordance with Purchaser’s direction)Meeting;
(ii) as promptly as reasonably practicable following the Appointment Time, file cause the definitive Proxy Statement with the SEC and cause the Proxy Statement to be mailed to its stockholders; and
(iii) use its commercially 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 in favor of the adoption of this Agreement in accordance with the DGCL 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.
Appears in 2 contracts
Samples: Merger Agreement (Hewlett Packard Co), Merger Agreement (Opsware Inc)
Stockholders Meeting. If (a) The Company shall, in accordance with applicable Law, the certificate of incorporation of the Company and the bylaws of the Company, duly call, give notice of, convene and hold a special meeting of the Company Stockholders (including any adjournment or postponement thereof, the “Company Stockholders’ Meeting”) as promptly as reasonably practicable after the 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 the Company is required under the DGCL in order incorporation and bylaws and any other applicable Law to consummate effect the Merger:.
(ab) As In accordance with applicable Law, promptly as practicable following after the Appointment Timedate hereof, the Company shall prepare and file with the SEC a preliminary proxy for statement relating to the Special Meeting Merger and this Agreement (together with any amendments thereof or and supplements thereto and any other required proxy materialsthereto, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that ). Parent, Purchaser Merger Sub and their counsel shall be given a reasonable opportunity to review and provide comments on the Proxy Statement before it is filed with the SEC and the Company shall give due consideration to all reasonable additions, deletions consider in good faith any revisions suggested by Parent 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 DGCLMerger Sub. The Company shall use its reasonable best efforts agrees 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 Merger Sub and their counsel (i) in writing with copies of any written comments, and shall inform them of any oral comments, 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 or oral responses thereto. Parent, Purchaser thereto and their counsel shall be given (ii) a reasonable opportunity to review any such written responses and provide comments on the proposed response of 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 those comments and to participate with the extent that such information shall have become false or misleading Company in any material respect discussions or as otherwise meetings with the SEC. The Company shall use its reasonable best efforts to (i) obtain and furnish the information required to be included by applicable Laws, and the Company further agrees to cause SEC in 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).
(bii) 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 preceding sentence, respond promptly as reasonably practicable following the Appointment Time, duly set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 comments made by the SEC and with respect to the Proxy Statement, (iii) cause the Proxy Statement to be mailed to its stockholders; and
stockholders 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 (iiiiv) use its reasonable best efforts to (A) solicit from its stockholders proxies in favor obtain the necessary approvals of this Agreement, the Merger and the transactions contemplated by this Agreement and the adoption of this Agreement and (B) secure any approval of stockholders of by the Company that is required by the DGCL and any other applicable Law to effect the MergerStockholders.
(c) At If at any time prior to the Special Company Stockholders’ Meeting any information relating to Parent, Merger Sub or the Company, or any postponement of their respective Subsidiaries, executive officers or adjournment thereofdirectors, 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 ensure that the Company Stockholders’ Meeting is duly called, noticed, convened, held and conducted, and that all proxies solicited in connection with the Company Stockholders’ Meeting are solicited in compliance with applicable Law. Parent agrees that it will vote, or cause to be voted, all of the Shares shares of Company common stock then owned by it, Purchaser Merger Sub or any of their Parent’s other Subsidiaries in favor of the adoption of this Agreement and to deliver or provide, in its capacity as a stockholder the approval of the CompanyMerger and the other Transactions.
(e) Without limiting the generality of the foregoing, any other approvals (i) the Company agrees that are its obligation to duly call, give notice of, convene and hold the Company Stockholders’ Meeting, as required by this Section 1.6, shall not be affected by the DGCL withdrawal, amendment or modification of the Company Board Recommendation, and (ii) the Company agrees that its obligations pursuant to this Section 1.6 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other applicable Law to effect Subsidiary of the MergerCompany of any Superior Proposal (as defined in Section 9.4).
Appears in 2 contracts
Samples: Purchase Agreement (Hospitality Properties Trust), Merger Agreement (Sonesta International Hotels Corp)
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 Timeexecution of this Agreement, the Company 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. Subject The Company shall use its reasonable best efforts to Section 5.2, 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 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 DGCLRecommendation. 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 it shall have become false or misleading in any material respect or as otherwise required by applicable Laws, 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 and this Agreement (including Section 5.2 and Section 8.1):law:
(i) (A) as promptly as reasonably practicable following the Appointment Timeexecution of this Agreement, duly set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its the stockholders of the Company (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and obtaining the Merger Stockholder Approval (with the record date and meeting date set in consultation with PurchaserPurchaser 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 reasonably practicable following the Appointment Timeexecution of this Agreement, if applicable, convene and hold the Special Meeting (and adjourn or postpone the Special Meeting in accordance with Purchaser’s direction)Meeting;
(ii) as promptly as reasonably practicable following the Appointment Time, file cause the definitive Proxy Statement with the SEC and cause the 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 approval of the Merger 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 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 law to effect the Merger.
(d) The Company shall adjourn or postpone the Special Meeting to the extent necessary to ensure that any necessary supplement or amendment to the Proxy Statement is provided to its stockholders in advance of a vote on the adoption of this Agreement and, if as of the time for which the Special Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Company 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 the direction of Parent, shall, adjourn or postpone the Special Meeting for no more than thirty (30) days in the aggregate.
Appears in 1 contract
Samples: Merger Agreement (Datascope Corp)
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 Timedate of this Agreement (and in any event within ten (10) Business Days), the Company shall prepare and file as promptly as practicable with the SEC Securities and Exchange Commission (the “SEC”) a proxy for a special meeting of the Company’s stockholders (the “Special Meeting 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 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, Purchaser Merger Sub and their counselcounsel 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 date 2 of this Agreement. Parent and Merger Sub shall promptly furnish to the Company 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 5.25.2(c) hereof, 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 DGCLDGCL (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 information required to be included by the SEC in the Proxy Statement and, after consultation with PurchaserMerger Sub, respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Purchaser Merger Sub 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 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, Purchaser Merger Sub and their counsel. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to the Company’s stockholders unless it has first obtained the consent of Parent and Merger Sub to such mailing, which consent shall not be unreasonably withheld, conditioned or delayed. The Company, on the one hand, and Parent and PurchaserMerger 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 such information it shall have become false or misleading in any material respect or as otherwise required by applicable LawsLaw, 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)(ii1.6(b)(ii), mailed to holders of shares (the “Shares”) of 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 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):Law:
(i) (A) as promptly as reasonably practicable following the Appointment Time, duly date of this Agreement set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) Meeting for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with PurchaserMerger 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 that it 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 reasonably practicable following the Appointment Timedate of this Agreement, convene and hold the Special Meeting (and adjourn or postpone the Special Meeting in accordance with Purchaser’s direction)Meeting;
(ii) as promptly as reasonably practicable following the Appointment Time, file cause the definitive Proxy Statement with the SEC and cause the Proxy Statement to be mailed to its stockholders; and
(iii) use its reasonable best efforts to to: (A) solicit from its stockholders proxies in favor of the adoption of this Agreement 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 in favor of the adoption of this Agreement 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.. 3
Appears in 1 contract
Stockholders Meeting. If approval of the stockholders of the Company is required under the DGCL in order to consummate the Merger:
(a) As promptly The Company, acting through its Board of Directors, shall, in accordance with applicable law (unless the Merger is consummated pursuant to DGCL Section 253):
(i) as soon as practicable following the Appointment TimeOffer Closing, duly call, give notice of, convene and hold a special meeting of the Company shall Company's stockholders (the "Stockholders' Meeting") for the purpose of considering and taking action upon this Agreement and approving the Merger;
(ii) promptly prepare and file with the SEC a preliminary proxy for or information statement (including any required amendments to the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”Schedule TO) relating to the Merger and this Agreement; provided, that Parent, Purchaser Agreement 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 (x) obtain and furnish the information required to be included by the SEC in the Proxy Statement (as hereinafter defined) and, after consultation with PurchaserParent, respond promptly to any comments made by the SEC with respect to the preliminary information or proxy statement and, subject to compliance with SEC rules and regulations, cause a notice of a special meeting and a definitive information or proxy statement (the "Proxy Statement") to be mailed to the stockholders of the Company as promptly as practicable and (y) use reasonable efforts to obtain the necessary approvals of the Merger and this Agreement by the stockholders of the Company; and
(iii) subject to its fiduciary obligations under applicable law, include in the Proxy Statement the recommendation of the Company's Board of Directors that stockholders of the Company vote in favor of the adoption of this Agreement.
(b) Parent and Acquisition Company will furnish to the Company any and all information relating to Parent and Acquisition Company required under the Exchange Act and the rules and regulations thereunder to be set forth in the Proxy Statement.
(c) The Company shall consult with Parent and Acquisition Company with respect to the Proxy Statement (and any amendments or supplements thereto) and shall afford Parent and Acquisition Company reasonable opportunity to comment thereon prior to its finalization. The Company shall provide Parent, Purchaser Parent and their its counsel in writing with copies of any written comments, and shall inform them of any oral comments, comments or other 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 (and any amendments or supplements thereto) promptly after the Company’s receipt of such commentscomments or other communications. If, at any time prior to the Stockholders' Meeting, any event shall occur 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, the Company will promptly notify in writing Parent and any written Acquisition Company of such event. In such case, the Company, with the cooperation of Parent and Acquisition Company, will promptly prepare and mail such amendment or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses supplement and the Company shall give due consideration consult with Parent and Acquisition Company with respect to all such amendment or supplement and shall afford Parent and Acquisition Company reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counselopportunity to comment thereon prior to such mailing. The Company, on the one hand, and Company agrees to notify Parent and Purchaser, on the other hand, agree Acquisition Company at least three (3) days prior 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 (or any amendment or supplement thereto) to the extent required by Stockholders of the Exchange Act or the SEC (or its staff)Company.
(bd) 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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 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 Parent agrees 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 it will vote, or cause to be voted, all of the Shares then owned by it, Purchaser Acquisition Company or any of their its other Subsidiaries in favor of the approval of the Merger and the adoption of this Agreement and to deliver take or provide, in its capacity as a stockholder of cause to be taken all additional corporate actions necessary for Acquisition Company to adopt and approve this Agreement and the Company, any other approvals that are required by the DGCL and any other applicable Law to effect the Mergertransactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Playcore Inc)
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, shallwill take, in accordance with and subject to the requirements of applicable Law and this Agreement (including Section 5.2 its certificate of incorporation and Section 8.1):
(i) (A) as promptly as reasonably practicable following the Appointment Timebylaws, duly set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and call, give notice of of, convene and hold a special meeting of its stockholders holders of Company Common Shares and Company Limited Voting Shares (such meeting or any adjournment or postponement thereof, the “Special Stockholders Meeting”) for the purpose of considering and taking action upon this Agreement and seeking the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) Requisite Company Vote as promptly as reasonably practicable after the execution of this Agreement, and in any event within fifty (50) days following the 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 clearance of the Proxy Statement by the SEC. The Company shall, through the Company Board, (i) recommend to be mailed to its stockholders; and
holders of the Company Common Shares and Company Limited Voting Shares that they give the Requisite Company Vote and (iiiii) use its reasonable best efforts to solicit the Requisite Company Vote (Aincluding by soliciting proxies from the Company’s stockholders), except to the extent that the Company Board shall have effected a Change of Recommendation, as permitted by and determined in accordance with Section 6.2. The Company shall keep Parent updated with respect to proxy solicitation results as reasonably requested by Parent. The Company shall not postpone or adjourn the Stockholders Meeting except to the extent (1) solicit from Parent has consented to such postponement or adjournment in writing, or (2) the Company, acting in good faith after consulting with its stockholders proxies in favor of outside legal counsel, determines that (i) such postponement or adjournment is necessary to ensure that any required supplement or amendment to the adoption of this Agreement and (B) secure any approval of Proxy Statement is provided to the stockholders of the Company that 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) it will not have sufficient Company Common Shares and Company Limited Voting Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Stockholders Meeting, or (iii) such postponement or adjournment is required by to comply with applicable Law; provided that in the DGCL and any other applicable Law to effect the Merger.
(c) At the Special Meeting or case of any postponement or adjournment thereofunder clause (ii) above, Parent shall vote, or cause to be voted, all the date of the Shares then owned Stockholders Meeting shall not be postponed or adjourned by itmore than an aggregate of fifteen (15) calendar days other than with Parent’s prior written consent (which shall not be unreasonably withheld, Purchaser conditioned or any of their other Subsidiaries delayed). Unless this Agreement shall have been terminated in favor accordance with ARTICLE VIII, the obligation of the adoption of this Agreement Company to call, give notice of, convene and hold the Stockholders Meeting and mail the Proxy Statement to deliver or provide, in its capacity as a stockholder of the Company, any other approvals that are required ’s stockholders shall not be affected by the DGCL and any other applicable Law to effect the Mergera Change of Recommendation.
Appears in 1 contract
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 TimeThe Company will take, 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 applicable law, the DGCL. The Company shall use its reasonable best efforts Certificate of Incorporation and Bylaws, all action necessary to obtain and furnish present 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 Shareholder Approval Proposal (as defined below) for a vote at the Company’s receipt 's 1998 annual meeting of such commentsstockholders, and any written or oral responses thereto. Parent, Purchaser and their counsel which meeting shall be given a reasonable opportunity to review any such written responses and no later than May 31, 1998 (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"Stockholders' Meeting").
(b) The Company's proxy statement for the 1998 annual meeting (as amended or supplemented, acting through the Company "Proxy Statement") shall include a proposal to consider and vote on the Shareholder Approval (the "Shareholder Approval Proposal"). The Proxy Statement shall contain the recommendation of the 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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 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 Directors of the Company that is required the stockholders approve the Shareholder Approval Proposal. The Company shall notify the Investor promptly of the receipt by it of any comments from the Commission or its staff and of any request by the DGCL Commission for amendments or supplements to the Proxy Statement or for additional information and will supply the Investor with copies of all correspondence between the Company and its representatives, on the one hand, and the Commission or the members of its staff or of any other applicable Law governmental officials, on the other hand, with respect to effect the MergerProxy Statement. Insofar as it relates to the Shareholder Approval Proposal, the Company shall give the Investor and its counsel the reasonable opportunity to review and comment on the Proxy Statement prior to its being filed with the Commission and shall give the Investor and its counsel the reasonable opportunity to review and comment on 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 Commission. The Company shall give reasonable consideration to any comments the Investor or its counsel may provide with respect to the Proxy Statement or any amendment or supplement thereto insofar as it relates to the Shareholder Approval Proposal.
(c) At In the Special Meeting or any postponement or adjournment thereofevent the Shareholder Approval Proposal is not duly approved by the stockholders at the Stockholders' Meeting, Parent the Company shall votetake all reasonable action necessary, or cause in accordance with applicable law, the Certificate of Incorporation and Bylaws to be voted, all present and the Board of the Shares then owned by it, Purchaser or any of their other Subsidiaries in favor of Directors shall recommend the adoption of this Agreement the Shareholder Approval Proposal at each meeting of its stockholders held thereafter until the Shareholder Approval Proposal is duly adopted by the stockholders for so long as the Shareholder Approval is required under the NASD Rules for the exercise of any Series B Warrant for Common Stock.
(d) Other than with respect to any information with respect to any member of the Investor Group supplied to the Company by such member of the Investor Group in writing specifically for inclusion in the Proxy Statement as to which information the Company makes no representation or warranty, the Company hereby represents and warrants that the Proxy Statement, as of the date thereof and as of the date of the Stockholders' Meeting, will not include an untrue statement of a material fact or omit to deliver state a material fact required to be stated therein or providenecessary to make the statements therein, in its capacity as a stockholder light of the Companycircumstances under which they will be made, any other approvals not misleading.
(e) The Investor hereby represents and warrants that are the Proxy Statement, as of the date thereof and as of the date of the Stockholders' Meeting, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or 39 45 necessary to make the statements therein, in light of the circumstances under which they will be made, not misleading, to the extent, and only to the extent that such statement or omission was made in reliance upon and in conformity with written information with respect to the Investor and its Affiliates supplied to the Company by the DGCL and any other applicable Law to effect Investor specifically for inclusion in the MergerProxy Statement.
Appears in 1 contract
Stockholders Meeting. If (a) If, after the Acceptance Time, approval of the stockholders of the Company Stockholders is required under the DGCL in order applicable Law to consummate the Merger, the Company and/or the Company Board, as applicable, shall, in accordance with and to the extent permitted by applicable Law:
(ai) As promptly as soon as practicable following the Appointment Acceptance Time, establish a record date for, duly call, give notice of, convene and hold a special meeting of the Company shall 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 a an information statement or preliminary proxy for statement, as may be required by the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materialsExchange Act, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Purchaser Agreement (the “Meeting Statement”) 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 by the SEC to be included by the SEC in the Proxy such Meeting Statement and, after consultation with PurchaserParent, 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 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 Proxy 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 filing. Parent and Merger Sub shall promptly furnish to the Company any and all information relating to Parent and Merger Sub required or reasonably requested by the Company 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, Purchaser Parent and their its counsel in writing with copies of any written comments, and shall inform them of any oral comments, comments or other communications that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Meeting Statement (and any amendments or supplements thereto) promptly after the Company’s receipt of such commentscomments or other communications, 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 use reasonable best efforts to all reasonable additions, deletions or changes suggested thereto by permit Parent, Purchaser Merger Sub and their counsel. The Representatives to participate with the Company or its Representatives in any discussions or meetings with the SEC.
(c) Each of the Company, on the one hand, and Parent and Purchaser, on the other hand, agree to 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 have 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 as otherwise required by applicable Lawsthe 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 further 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 cause the Proxy Statement, as so corrected notify Parent and Merger Sub at least three (if applicable), 3) calendar days prior to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Meeting Statement as provided in Section 1.9(b)(ii), mailed to holders of Shares, in each case as and (or any amendment or supplement thereto) to the extent required by the Exchange Act or the SEC (or its staff)Stockholders.
(bd) The Company, acting through Parent and Merger Sub each agree that at 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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the Appointment Time, convene and hold the Special Stockholders 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 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 they will vote, or cause to be voted, all of the Shares then beneficially owned by it, Purchaser or any of their other Subsidiaries them in favor of the approval of the Merger and the adoption of this Agreement 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 MergerAgreement.
Appears in 1 contract
Samples: Merger Agreement (KSW Inc)
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 TimeAcceptance 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 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 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 counselcounsel 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. Subject Parent and Purchaser will provide to Section 5.2the 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 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 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 such information it shall have become false or misleading in any material respect or as otherwise required by applicable LawsLaw, 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)(ii1.11(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 and this Agreement (including Section 5.2 and Section 8.1):Law:
(i) (A) as promptly as reasonably practicable following the Appointment TimeAcceptance 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, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its the Company’s stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the Appointment TimeAcceptance 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 adjourn or postpone the Special Meeting in accordance with Purchaser’s direction);Meeting; and
(ii) as promptly as reasonably practicable following the Appointment Time, file cause the definitive Proxy Statement with the SEC and cause the 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 respective Subsidiaries in favor of the adoption of this Agreement 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.
Appears in 1 contract
Stockholders Meeting. If (a) The Company, acting through its Board of Directors, shall, in accordance with applicable law and its certificate of incorporation and bylaws, duly call, give notice of, convene and hold a special meeting of its 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 is required under the DGCL in order to consummate approval and adoption of this Agreement and the approval of the Merger:
, (aii) 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 its recommendation of the Company Board of Directors 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 accordance paragraph (c) below.
(b) As soon as reasonably practicable following the execution of this Agreement and in connection with the DGCL. The Stockholders Meeting, the Company shall (i) promptly prepare and file with the SEC, use its commercially reasonable best efforts to obtain and furnish the information required to be included have cleared by the SEC in and thereafter mail to its stockholders as promptly as practicable the Proxy Statement andand all other proxy materials required in connection with such meeting, after consultation with Purchaser, respond promptly to (ii) notify Parent of the receipt of any comments made by of the SEC with respect to the Proxy StatementStatement 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 or any representative of the Company and the SEC and (iii) shall give Parent and its counsel the opportunity to review the Proxy Statement prior to its being filed with the SEC and shall give Parent and its 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.
(c) Nothing in this Agreement shall prevent the Board of Directors of the Company from withholding, withdrawing, amending or modifying its recommendation in favor of the Merger if (i) a Superior Offer (as defined below) is made to the Company 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 outside counsel, that, in light of such Superior Offer, the withholding, withdrawal, amendment or 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 Section 5.1. The Company shall provide Parent, Purchaser and their counsel Parent with copies of any written comments, and shall inform them of any oral comments, that the Company at least three business days prior notice (or its counsel may receive from time to time from the SEC or its staff with respect such lesser prior notice as is provided to the Proxy Statement promptly after members of the Company’s receipt 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 comments, Acquisition Proposal is a Superior Offer. Nothing contained in this Section 5.1 shall limit the Company’s obligation to hold 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 convene the Stockholders Meeting (regardless of whether the recommendation of the Board of Directors of the Company shall give due consideration to all reasonable additionshave been withdrawn, deletions amended 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 staffmodified).
(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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 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 in favor of the adoption of this Agreement 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.
Appears in 1 contract
Stockholders Meeting. If (a) Promptly following the Initial Closing Date, the Company shall take all action necessary 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 Company is required under Call Shares, the DGCL in order Call Exercise Warrants, the Second Closing Warrants, the Aggregate Incremental Warrant Shares and the Warrant Shares issuable upon exercise or otherwise pursuant to consummate the Merger:
Second Closing Warrants (athe "Proposal”). In connection therewith, no later than twenty-one (21) As promptly as practicable following calendar days after the Appointment TimeInitial Closing Date, the Company shall prepare and file with the SEC a proxy statement for the Special Stockholders 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 Best Efforts to obtain and furnish cause the information required Proxy Statement to be included cleared by the SEC in (“SEC Clearance”) and mailed to the stockholders of the Company as promptly as practicable after filing. The Company shall 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 the Company or its counsel may receive or have from time to time with the SEC or its staff with respect to the Proxy Statement andpromptly after such discussions, after consultation with Purchaseror the Company’s receipt of such comments or correspondence, and any written or oral responses thereto. The Company shall respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Stockholders Meeting shall occur not later than January 31, 2009 (the “Stockholders Meeting Deadline”); provided however, that if, notwithstanding the exercise of the Company’s reasonable Best Efforts, the Company is unable to obtain SEC Clearance of the Proxy Statement by January 1, 2009, the Stockholders Meeting Deadline shall provide Parentbe automatically extended to February 28, Purchaser 2009. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and their counsel its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement. The Company will comply with copies Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any written commentsProxy Statement to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall inform them of any oral commentsnot, on the date that the Company Proxy Statement (or its counsel may receive from any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to time from state any material fact necessary in order to make the SEC statements made therein not false or its staff misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the Proxy Statement promptly after solicitation of proxies or 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 Stockholders Meeting which has become false or misleading in any material respect or as otherwise required by applicable Laws, and misleading. If the Company further agrees should discover at any time prior to cause 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, 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 addition to the extent required by Company’s obligations under the Exchange Act or Act, the SEC (or its staff)Company will promptly inform the Investors thereof.
(b) The 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), acting through 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 Directorsthe immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, shallamend 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 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 subject to the requirements provisions of applicable Law its certificate of incorporation and this Agreement (including Section 5.2 and Section 8.1):
bylaws, (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 to convene the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) Stockholders Meeting as promptly as reasonably practicable following practicable, but no later than the Appointment TimeStockholders Meeting Deadline, convene to consider and hold vote upon the Special Meeting (approval of the Proposal and adjourn or postpone the Special Meeting in accordance with Purchaser’s direction);
(ii) as promptly as reasonably practicable following submit the Appointment Time, file Proposal at the definitive Proxy Statement with Stockholders Meeting to the SEC and cause the 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 Mergerfor their approval.
(c) At Each Investor agrees that it shall not vote any shares of Common Stock held by such Investor against the Special Meeting or any postponement or adjournment thereof, Parent shall vote, or cause to be voted, all of Proposal at the Shares then owned by it, Purchaser or any of their other Subsidiaries in favor of the adoption of this Agreement 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 MergerStockholders Meeting.
Appears in 1 contract
Samples: Securities Purchase Agreement (MAKO Surgical Corp.)
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, date hereof and the Company shall prepare and file with date on which the SEC a proxy for shall clear (whether orally or in writing) 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/Prospectus and, 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 if required to be included by the SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly as a condition 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)Statement/Prospectus, 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 DirectorsRegistration Statement shall have been declared effective, 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 the DGCL and the Company Governing Documents to duly shall call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Company Stockholders Meeting”) to be held as promptly as practicable for the purpose of considering and taking action voting upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (Bi) as promptly as reasonably practicable following the 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 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 Agreement, (ii) the amendment of the Company’s certificate of incorporation to increase the number of authorized shares of Company Common Stock in connection with the issuance of the Aggregate Merger Consideration and (Biii) secure any approval the issuance of shares of Company Common Stock pursuant to the Merger. This Agreement shall be submitted for adoption to the 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 at such special meeting. The Company shall votedeliver, or cause to be voteddelivered, all to the Company’s stockholders the Proxy Statement/Prospectus in definitive form in connection with the Company Stockholders Meeting at the time and in the manner provided by the applicable provisions of the Shares then owned by itDGCL, Purchaser or any the Exchange Act and the Company’s certificate of their other Subsidiaries incorporation and bylaws and shall conduct the Company Stockholders Meeting and the solicitation of proxies in connection therewith in compliance with such statutes, certificate of incorporation and bylaws.
(b) The Board of Directors of the Company shall recommend that the Company’s stockholders vote in favor of the adoption of this Agreement items in Section 7.4(a)(i)-(iii) (the “Company Board Recommendation”) and shall not withdraw, modify or qualify or publicly propose to deliver withdraw, modify or providequalify, in its capacity as any manner adverse to Verizon, the Company Board Recommendation, including approving or recommending a stockholder 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 the Board of Directors of the CompanyCompany may make a Change of Board Recommendation pursuant to and in conformity with Section 7.11(c). For the avoidance of doubt, any other approvals that are required the obligation of the Company to call and hold the Company Stockholder Meeting for the purpose of voting upon the items in Section 7.4(a)(i)-(iii) shall not be affected by the DGCL and any other applicable Law to effect the Mergera Change of Board Recommendation.
Appears in 1 contract
Stockholders Meeting. If (a) The Company shall take all actions in accordance with applicable law, the Trading Market, the Company’s certificate of incorporation and the Company’s bylaws to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within thirty (30) calendar days after the clearance of the Proxy 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 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 such recommendation in the Proxy Statement and (ii) neither the recommendation of the Company Board of Directors that the stockholders Directors, nor any committee thereof, shall effect a Change of the Company vote in favor of the adoption of this Agreement in accordance with the DGCLRecommendation. 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):
(iby retaining a proxy solicitation firm) (A) as promptly as reasonably practicable following the Appointment Time, duly set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 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 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 proposal whether or not the Board of Directors at any time subsequent to the date of this Agreement and (B) secure any approval of determines, that the proposal is no longer advisable or recommends that the stockholders of the Company reject such proposal. The Company shall use reasonable best efforts to ensure that is required by all proxies solicited in connection with its Stockholders Meeting are solicited, in compliance with the DGCL Delaware General Corporation Law, the Trading Market, the Company’s certificate of incorporation and any the Company’s bylaws and all other applicable Law legal requirements. Notwithstanding anything to effect the Mergercontrary contained in this Agreement, the Company, after receiving written consent of Purchaser, may adjourn or postpone the Stockholders Meeting to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to its stockholders or, if as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of Common Stock and Preferred Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Stockholders Meeting.
(c) At Following the Special Meeting or any postponement or adjournment thereofStockholders Meeting, Parent the Company shall vote, or cause deliver to be voted, all the Corporate Secretary of Purchaser a certificate setting forth the Shares then owned by it, Purchaser or any of their other Subsidiaries in favor of voting results from the adoption of this Agreement 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 MergerStockholders Meeting.
Appears in 1 contract
Samples: Stock Purchase Agreement (Harbor BioSciences, Inc.)
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 Promptly after the Appointment Timeexecution of this Agreement, and in any event within ten (10) business days after the date hereof, the Company shall prepare prepare, and the Company shall file with the SEC, preliminary proxy materials (including a preliminary Proxy Statement). Parent shall provide promptly to the Company such information concerning Parent and Merger Sub as may be reasonably requested by the Company for inclusion in the Proxy Statement. At the earliest practicable time (and in any event within five (5) business days) following the later of (i) receipt and resolution of the SEC comments on the preliminary Proxy Statement, and (ii) the expiration of the ten (10)-day waiting period provided in Rule 14a-6(a) promulgated under the Exchange Act, the Company shall file definitive proxy materials (including the definitive Proxy Statement) with the SEC and cause the definitive Proxy Statement to be mailed to its stockholders. Unless the Company Board shall have effected a proxy for the Special Meeting (together Change in Recommendation in accordance with Section 6.3(b), prior to filing any amendments thereof Proxy Statement or supplements thereto and any other required proxy materialsfiling with the SEC in connection with the Transactions, the “Proxy Statement”) relating to the Merger Company shall provide Parent and this Agreement; provided, that Parent, Purchaser and their its counsel shall be given a with reasonable opportunity to review the Proxy Statement before it is filed with the SEC and comment on each such filing in advance, and the Company shall give due consideration to in good faith consider including in such filings all reasonable additions, deletions or changes suggested thereto comments reasonably proposed by Parent. All documents that the Company files with the SEC in connection with the Merger or the other Transactions, Purchaser including the Proxy Statement, will comply as to form and their counsel. Subject to Section 5.2substance in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the rules and regulations thereunder.
(b) The Company shall include in notify Parent promptly of the receipt of any oral or written comments from the SEC or its staff (or of notice of the SEC’s intent to review the preliminary Proxy Statement) and of any request by the SEC or its staff for amendments or supplements to 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 or any other filing with the DGCLSEC in connection with the Transactions or for additional/supplemental information in connection therewith. The Company shall use its reasonable best efforts to obtain and furnish shall, as promptly as practicable after the information required to be included by the SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly to any receipt of such 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 or any other such filing, (i) supply Parent with copies of such commentsall written correspondence received in connection therewith, and (ii) provide Parent a reasonably detailed description of any written or oral responses theretocomments received in connection therewith. ParentUnless the Company Board shall have effected a Change in Recommendation in accordance with Section 6.3(b), Purchaser and their counsel the Company (x) shall be given provide Parent with a reasonable opportunity to review and comment on any responses to comments or inquiries by the SEC with respect to any filings related to the Transactions, (y) shall consider in good faith including in such written responses response all comments reasonably proposed by Parent in respect of the filings and (z) shall provide Parent and its counsel a reasonable opportunity to participate in any discussions or meetings with the SEC or its staff with respect to such filings. The Company shall respond promptly in good faith to any comments by the SEC and if, at any time prior to the Effective Time, any event or information relating to the Company, Parent, Merger Sub, or any of their affiliates, should be discovered by Parent or the Company which should be set forth in an amendment or supplement to the Proxy Statement, so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein not false or misleading, the party which discovers such information shall promptly notify the other parties and the Company shall give due consideration to all reasonable additions, deletions cause an appropriate amendment 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 supplement describing 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 as promptly as practicable thereafter 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 applicable Law or Order, disseminated to the Exchange Act or stockholders of the SEC (or its staff)Company.
(bc) 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 shall take all action necessary in accordance with the DGCL applicable Law, Order and the Company Governing Documents Company’s Certificate of Incorporation and By-laws (i) to duly call and call, give notice of of, convene and hold a special meeting of its stockholders as promptly as practicable, and in any event (such meeting or any adjournment or postponement thereofto the extent permissible under applicable Law and Order) within forty-five (45) days after the mailing of the definitive Proxy Statement to the stockholders of the Company, the “Special Meeting”) for the purpose of considering and taking action upon the adoption of this Agreement (the “Stockholders’ Meeting”), and (ii) unless the Merger Company Board shall have effected a Change in Recommendation in accordance with Section 6.3(b), (with A) include in the record date and meeting date set Proxy Statement the Company Board’s recommendation that the holders of the Company Shares vote in consultation with Purchaserfavor of the adoption of this Agreement (which recommendation shall be deemed a part of the Company Board Recommendation), and (B) as promptly as reasonably practicable following the 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 to be mailed to its stockholders; and
(iii) use its reasonable best efforts to (A) solicit from its the stockholders of the Company proxies in favor of the adoption of this Agreement and (B) secure any approval of stockholders the vote or consent of the Company that is Company’s stockholders as required by the rules of NYSE, the DGCL and any or other applicable Law to effect the Merger.
. The Company shall give Parent no less than ten (c10) At business days advance notice (or such shorter period of time as notice is provided to the Special Meeting or any postponement or adjournment thereof, Parent shall vote, or cause to be voted, all NYSE) of the Shares then owned by it, Purchaser or any of their other Subsidiaries in favor of date which shall be set as the adoption of “record date” for the Company’s stockholders eligible to vote on this Agreement and to deliver or provide, in its capacity as a stockholder the Transactions. The Company shall consult with Parent regarding the date of the CompanyStockholders’ Meeting and shall not postpone or adjourn the Stockholders’ Meeting without the prior written consent of Parent; provided, any other approvals however, that are required by nothing herein shall prevent the DGCL Company from postponing or adjourning (one time only for no more than five (5) business days in the case of clause (w) and any other applicable Law one time only for no more than seven (7) business days in the case of clause (y)) the Stockholders’ Meeting if and to effect the Merger.extent that:
Appears in 1 contract
Samples: Merger Agreement (McAfee, Inc.)
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 Unless Parent and Sub are required to take action to effect the Merger pursuant to Section 2.7, following the Appointment Timepurchase of Shares pursuant to the Offer, the Company shall prepare will duly call, give notice of, convene and file with hold a meeting of stockholders (the SEC a proxy "Stockholder Meeting") for the Special Meeting (together with any amendments thereof or supplements thereto purpose of considering the adoption of this Agreement and any other required proxy materials, the “Proxy Statement”) relating at such meeting call for a vote and cause proxies 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 voted in the Proxy Statement the recommendation of the Company Board of Directors that the stockholders of the Company vote in favor respect of the adoption of this Agreement 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 accordance good faith that such action is inconsistent with its fiduciary duties to the Company's stockholders under applicable law) the Company 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 the Offer.
(b) Unless Parent and Sub are required to take action to effect the Merger pursuant to Section 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 DGCL. The Company shall SEC and 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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 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 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 stockholders; and
(iii) use staff and of any request by the SEC or its reasonable best efforts staff for amendments or supplements to (A) solicit from the Proxy Statement or for additional information and will 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 or the Merger. If at any time prior to the Stockholder Meeting there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and mail to its stockholders proxies 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 favor the preparation of the adoption Proxy Statement or any amendment or supplement thereto, including the supply of this Agreement and (B) secure any approval of stockholders of information required to be included in the Company that is required by the DGCL and any other applicable Law to effect the MergerProxy Statement regarding Parent or Sub.
(c) At Parent agrees to cause all Shares purchased pursuant to the Special Meeting Offer and all other Shares beneficially owned by VAC, Parent or any postponement or adjournment thereof, Parent shall vote, or cause Subsidiary of VAC to be voted, all of the Shares then owned by it, Purchaser or any of their other Subsidiaries voted in favor of the adoption of this Agreement 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 MergerMerger Agreement.
Appears in 1 contract
Samples: Merger Agreement (Kenetech Corp)
Stockholders Meeting. If a Short Form Merger has not been completed and 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 Acceptance 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 Acceptance Time, duly set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the Appointment Acceptance Time, convene and hold the Special Meeting (and adjourn or postpone the Special Meeting in accordance consultation with Purchaser’s direction);
(ii) as promptly as reasonably practicable following the Appointment Acceptance Time, file the definitive Proxy Statement with the SEC and cause the 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 in favor of the adoption of this Agreement 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.
Appears in 1 contract
Samples: Merger Agreement (Volcom Inc)
Stockholders Meeting. If approval of the stockholders of the Company is required under the DGCL in order to consummate the Merger:
(a) As The Company shall take all action necessary, in accordance with applicable law and its Certificate of Incorporation and By-laws, to convene to a special or annual meeting of its stockholders (the "STOCKHOLDERS MEETING") as promptly as reasonably practicable following after the Appointment Time, the Company shall prepare and file with the SEC a proxy date of this Agreement for the Special Meeting (together with any amendments thereof or supplements thereto purpose of, among other things, considering and any other required proxy materials, taking action upon a resolution to adopt the “Proxy Statement”) relating to the Merger Amended and this Agreement; provided, Restated Certificate of Incorporation. The Board will recommend 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 holders of the Company Board of Directors that the stockholders of the Company Common Stock vote in favor of the adoption of this Agreement in accordance with the DGCL. The Company shall use its reasonable best efforts to obtain Amended and furnish Restated Certificate of Incorporation at 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)Stockholders Meeting.
(b) The CompanyCompany will, acting through as soon as practicable following the Company Board date of Directorsthis Agreement, shall, in accordance prepare and file a proxy statement (the "PROXY STATEMENT") with and subject the SEC relating to the Stockholders Meeting (including any information required to satisfy the requirements of applicable Law Section 14(f) of the Exchange Act 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 the DGCL and the Rule 14f-1 promulgated thereunder). The Company Governing Documents will use its reasonable good faith efforts to duly call and give notice respond to any comments of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 or its staff and to cause the Proxy Statement to be mailed to its stockholders; and
(iii) use its reasonable best efforts the Company's stockholders as promptly as practicable after responding to (A) solicit from its stockholders proxies in favor all such comments to the satisfaction of the adoption of this Agreement and (B) secure any approval of stockholders SEC or its staff. The Company will provide the Investor with a copy of the preliminary Proxy Statement and all modifications thereto prior to filing or delivery to the SEC and will consult with the Investor in connection therewith. The Company that is required will notify the Investor promptly of the receipt of any comments from the SEC or its staff and of any request by the DGCL SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and any other applicable Law to effect will supply the Merger.
(c) At Investor with copies of all correspondence between 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 Company or any of their its representatives, on the one hand, and the SEC or its staff, on the other Subsidiaries hand, with respect to the Proxy Statement or the Stockholders Meeting. The Investor will cooperate and furnish promptly all information required for inclusion in favor the Proxy Statement. If at any time prior to the Stockholders Meeting there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company will promptly prepare and mail to its stockholders such an amendment or supplement. The information provided by either party for use in the Proxy Statement shall be true and correct in all material respects without omission of the adoption of this Agreement and any material fact which is required to deliver make such information not false or providemisleading. No representation, in its capacity as a stockholder of the Company, any other approvals that are required covenant or agreement is made by either party with respect to information supplied by the DGCL and any other applicable Law to effect party for inclusion in the MergerProxy Statement.
Appears in 1 contract
Samples: Investment Agreement (Atlantic Gulf Communities Corp)
Stockholders Meeting. If approval Subject to fiduciary obligations of the stockholders Company’s Board of Directors or any committee thereof under applicable Law, the Company is required under will take, in accordance with applicable Law and its certificate of incorporation and bylaws, all reasonable action necessary to convene a meeting of Record Holders of Common Shares (the DGCL in order to consummate the Merger:
(a“Stockholders Meeting”) As as promptly as practicable following after the Appointment Time, date of mailing of the Company shall prepare Proxy Statement to consider and file with vote upon 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 adoption of this Agreement; provided, that Parenthowever, Purchaser and their counsel shall be given a reasonable opportunity to review for the Proxy Statement before it is filed avoidance of doubt, the Company may postpone or adjourn the Stockholders Meeting (i) with the SEC consent of Parent; (ii) if as of the time for which the Stockholders Meeting is scheduled there are insufficient Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Stockholders Meeting; (iii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Board of Directors of the Company 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 be disseminated and reviewed by the Company’s stockholders prior to the Stockholders Meeting; (iv) if required by Law; or (v) if the Company has provided a written notice to Parent and Merger Sub pursuant to Section 6.2(c) that it intends to make a Change of Recommendation in connection with a Superior Proposal or take action pursuant to Section 8.3(a) with respect to a Superior Proposal and the Company shall give due consideration notice period contemplated by Section 6.2(c) with respect to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counselsuch notice has not been reached. Subject to Section 5.26.2, the Board of Directors of the Company shall include the Company Recommendation in the Proxy Statement and shall take all reasonable lawful action to solicit proxies from the recommendation of the Company Board of Directors that the Company’s stockholders of the Company vote in favor of the such 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)Agreement.
(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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 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 in favor of the adoption of this Agreement 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.
Appears in 1 contract
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 TimeAcceptance 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 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 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 counselcounsel 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. Subject Parent and Purchaser will provide to Section 5.2the 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 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 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 such information it shall have become false or misleading in any material respect or as otherwise required by applicable LawsLaw, 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)(ii1.11(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 and this Agreement (including Section 5.2 and Section 8.1):Law:
(i) (A) as promptly as reasonably practicable following the Appointment TimeAcceptance 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, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its the Company’s stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the Appointment TimeAcceptance 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 adjourn or postpone the Special Meeting in accordance with Purchaser’s direction)Meeting;
(ii) as promptly as reasonably practicable following the Appointment Time, file cause the definitive Proxy Statement with the SEC and cause the 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 respective Subsidiaries in favor of the adoption of this Agreement 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.
Appears in 1 contract
Stockholders Meeting. If approval Subject to the other provisions 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 Timethis Agreement, the Company shall prepare (i) as promptly as reasonably practicable and file with in any event no later than ten (10) Business Days after the SEC a proxy for the Special Meeting (together with any amendments thereof confirms that it has no further comments on, or supplements thereto and any other required proxy materialsotherwise clears, the “Proxy Statement”) relating to the Merger Schedule 13E-3 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)take all action required under the NRS and its Articles of Incorporation and the Bylaws to duly call, to be filed with the SEC andgive notice of, if any such correction is made convene and hold a meeting of its stockholders promptly 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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and obtaining the Merger Company Stockholder Approval (the “Stockholders’ Meeting”), with the record date and meeting date set in of the Stockholders’ Meeting to be determined by the Company after good faith consultation with Purchaser)Parent, and (Bii) as promptly as reasonably practicable following the Appointment Time, convene and hold the Special Meeting (and adjourn or postpone the Special Meeting subject to a Change in Company Recommendation in accordance with Purchaser’s direction);
Section 6.2, (iix) as promptly as reasonably practicable following recommend to the Appointment Timestockholders that they approve and adopt this Agreement, file the definitive Proxy Statement with the SEC and cause shall include such recommendation in the Proxy Statement to be mailed to its stockholders; and
Statement, (iiiy) 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 the Transactions and (z) take all other actions necessary or advisable to secure the Company Stockholder Approval. Upon prior written request of Parent, the Company shall use its commercially reasonable efforts to 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 with respect to the Company Stockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, the Company may, and Parent may request in writing that the Company, adjourn or postpone the 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 supplement or amendment to the Proxy Statement that is required by the DGCL and any other applicable Law is timely provided to effect the Merger.
Company’s stockholders, (cii) At if at the Special time the Stockholders’ Meeting proceeds to business there are insufficient Shares represented (either in person or any postponement by proxy) to constitute a quorum necessary or adjournment thereof, Parent shall voteadvisable to conduct business at the Stockholders’ Meeting, or cause (iii) additional time is required to be voted, all of the Shares then owned by it, Purchaser or any of their other Subsidiaries solicit proxies in favor of the adoption of this Agreement 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 MergerAgreement.
Appears in 1 contract
Stockholders Meeting. If approval 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 Appointment Acceptance Time, the Company shall 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 the 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 use its commercially reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement or Information Statement, as applicable, and, after consultation with 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 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 LawsLaw and, 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 1.9(b)(ii1.8(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 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):Law:
(i) (A) (1) as promptly as reasonably practicable following the Appointment Acceptance Time, in consultation with Parent, duly set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B2) as promptly as reasonably practicable following the Appointment Acceptance Time, convene and hold the Special Meeting or (B) if Parent specifies that adoption of this Agreement be effected by the written consent of the stockholders of the Company, as promptly as reasonably practicable following the Acceptance Time and adjourn or postpone the Special Meeting in accordance with Purchaser’s direction)the DGCL, set a record date for and solicit such written consents;
(ii) as promptly as reasonably practicable following the Appointment 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 (or, in the case of written consent, the Information Statement) to be mailed to its stockholders; and
(iii) use its reasonable best efforts to (A) solicit from its stockholders proxies or written consents in favor of the adoption of this Agreement and approval of the Merger and (B) use its commercially reasonable efforts to secure any other 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 cause to be present and vote, or cause to be votedvoted (or, if Parent specifies that adoption of this Agreement be effected by the written consent of the stockholders of the Company, Parent shall consent, or cause such consent to be given with respect to), all of the Shares then owned of record by it, Purchaser or any of their other Subsidiaries 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.
Appears in 1 contract
Stockholders Meeting. If approval 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 Appointment Acceptance Time, the Company shall 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 the 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 use its commercially reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement or Information Statement, as applicable, and, after consultation with 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 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 LawsLaw and, 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 1.9(b)(ii1.8(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 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):Law:
(i) (A) (1) as promptly as reasonably practicable following the Appointment Acceptance Time, in consultation with Parent, duly set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B2) as promptly as reasonably practicable following the Appointment Acceptance Time, convene and hold the Special Meeting or (B) if Parent specifies that adoption of this Agreement be effected by the written consent of the stockholders of the Company, as promptly as reasonably practicable following the Acceptance Time and adjourn or postpone the Special Meeting in accordance with Purchaser’s direction)the DGCL, set a record date for and solicit such written consents;
(ii) as promptly as reasonably practicable following the Appointment 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 (or, in the case of written consent, the Information Statement) to be mailed to its stockholders; and
(iii) use its reasonable best efforts to (A) solicit from its stockholders proxies or written consents in favor of the adoption of this Agreement and approval of the Merger and (B) use its commercially reasonable efforts to secure any other 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 cause to be present and vote, or cause to be votedvoted (or, if Parent specifies that adoption of this Agreement be effected by the written consent of the stockholders of the Company, Parent shall consent, or cause such consent to be given with respect to), all of the Shares then owned of record by it, Purchaser or any of their other Subsidiaries 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.
Appears in 1 contract
Samples: Merger Agreement (Johnson & Johnson)
Stockholders Meeting. (a) If approval the adoption of the stockholders of this Agreement by the Company Stockholders is required under the DGCL by applicable Law in order to consummate the Merger, Company, acting through the Company Board, shall, in accordance with applicable Law:
(ai) As promptly duly set a record date for, call, give notice of, convene and hold a special meeting of its stockholders (the “Special Meeting”) as soon as practicable following the Appointment Time, acceptance for payment of and payment for shares of Company Common Stock by Purchaser pursuant to the Offer and the expiration of any subsequent offering period pursuant to Section 1.1(b) for the sole purpose of obtaining the approval of the Company shall Stockholders of the adoption of this Agreement in accordance with the DGCL;
(ii) prepare and file with the SEC a preliminary proxy 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, 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 preliminary proxy statement prior to its filing with the SEC SEC, and the Company shall give due reasonable and good faith consideration to all reasonable additions, deletions or changes suggested thereto any comments made by Parent, Purchaser and or 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 and use its reasonable best efforts (x) to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with PurchaserParent, 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. The ”) to be mailed to its stockholders, and (y) to obtain the necessary adoption of this Agreement by its stockholders;
(iii) subject to the fiduciary duties of the Company shall provide Board, include in the Proxy Statement the Company Recommendations that the Company Stockholders vote in favor of the adoption and approval of this Agreement; and
(iv) include in the Proxy Statement the opinion of Company’s Financial Advisor referred to in Section 5.23.
(b) If at any time prior to the Special Meeting, any information relating to the Merger, Company, Parent, Purchaser and or any of their counsel with copies respective Affiliates, is discovered by Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any written commentsmaterial 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 party that discovers such information shall promptly notify the other party, and shall inform them of any oral comments, that the Company an appropriate amendment or its counsel may receive from time to time from the SEC or its staff with respect supplement 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 andand disseminated to the Company Stockholders, 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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 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 MergerLaw.
(c) At the Special Meeting or any postponement or adjournment thereof, Parent shall furnish all information concerning Parent and Purchaser as the Company may reasonable request in connection with the preparation and filing with the SEC of the Proxy Statement. Each of Parent and Purchaser agrees that it will vote, or cause to be voted, all of the Shares shares of Company Common Stock then owned by it, Purchaser it or any of their other its Subsidiaries in favor of the approval of the Merger and adoption and approval of this Agreement 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 MergerAgreement.
Appears in 1 contract
Samples: Merger Agreement (Adobe Systems Inc)
Stockholders Meeting. If approval of the stockholders of the Company is required under the DGCL in order to consummate the Merger:
(a) As Subject to any termination of this Agreement pursuant to Article VIII, as promptly as practicable following the Appointment TimeAgreement Date, the Company shall prepare and file with the SEC 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 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 5.25.3(c), 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 and Parent shall use its their reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement andand the Company, after consultation with Purchaser, shall respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Purchaser Parent and their its counsel with copies of any written comments, and shall use reasonable efforts to 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 it shall have become false or misleading in any material respect or as otherwise required by applicable Lawslaw and, 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)(ii1.6(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) The 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 and this Agreement (including Section 5.2 and Section 8.1):law:
(i) (A) as promptly as reasonably practicable following the Appointment Time, Agreement Date duly set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the sole purpose of considering and taking action upon obtaining the approval by the stockholders of the Company of the adoption of this Agreement and in accordance with the Merger DGCL (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the Appointment TimeAgreement Date, convene and hold the Special Meeting (and adjourn or postpone the Special Meeting in accordance with Purchaser’s direction)Meeting;
(ii) as promptly as reasonably practicable following the Appointment Time, file cause the definitive Proxy Statement with the SEC and cause the Proxy Statement to be mailed to its stockholders; and
(iii) use its commercially 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.
Merger (c) At the Special Meeting or any postponement or adjournment thereof, Parent it being understood and agreed that a Company Change in Recommendation in accordance with Section 5.3 shall vote, or cause to not be voted, all of the Shares then owned by it, Purchaser or any of their other Subsidiaries in favor of the adoption a violation of this Agreement 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 MergerSection 1.7(b)).
Appears in 1 contract
Stockholders Meeting. (a) If approval of the stockholders of the Company is required under the DGCL by applicable law in order to consummate the Merger, the Company, acting through its Board of Directors, shall, in accordance with applicable law:
(ai) As duly call, give notice of, convene and hold a special meeting of its stockholders (the "Company Stockholders Meeting") as promptly as practicable following the Appointment Time, acceptance for payment and purchase of Shares by Purchaser pursuant to the Company shall Offer for the purpose of considering and taking action upon the approval of the Merger and the approval and adoption of this Agreement;
(ii) prepare and file with the SEC a preliminary proxy for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) information statement relating to the Merger and this Agreement; provided, that Parent, Purchaser Agreement 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 (as hereinafter defined) and, after consultation with PurchaserParent, respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement, including any amendment or supplement thereto (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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 to be mailed to its stockholdersstockholders at the earliest practicable date, provided that no amendment or supplement to the Proxy Statement will be made by the Company without consultation with Parent and its outside counsel;
(iii) include in the Proxy Statement the recommendation of the Company Board that stockholders of the Company vote in favor of the approval of the Merger and the approval and adoption of this Agreement; and
(iiiiv) use its reasonable best efforts to (A) solicit from its stockholders holders of Shares proxies in favor of the adoption of this Agreement Merger and (B) shall take all other action reasonably necessary or advisable to secure any approval vote or consent of stockholders of the Company that is required by the DGCL and any other applicable Law Delaware law to effect the Merger.
(cb) At Parent will provide the Special Meeting or any postponement or adjournment thereof, Company with the information concerning Parent and Purchaser required to be included in the Proxy Statement. Parent shall vote, or cause to be voted, all of the Shares then owned by it, Purchaser or any of their its other Subsidiaries subsidiaries or affiliates controlled by Parent in favor of the approval of the Merger and the approval and adoption of this Agreement 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 MergerAgreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sterling Commerce Inc)
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 DirectorsBoard, shall, shall take all actions in accordance with applicable Law, its Certificate of Incorporation and subject By-laws and the rules of the New York Stock Exchange to the requirements of applicable Law promptly and this Agreement (including Section 5.2 duly call, give notice of, convene and Section 8.1):
(i) (A) hold as promptly as reasonably practicable following the Appointment Time, duly set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) Meeting for the purpose of considering and taking action voting upon this Agreement the Company Voting Proposal. Subject to the occurrence of an Adverse Recommendation Change pursuant to Section 6.1, (a) the Company Board shall recommend adoption of the Company Voting Proposal by the stockholders of the Company and the Merger (with the record date and meeting date set include such recommendation in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 and (b) the Company Board shall not withhold, withdraw or modify, or publicly propose or resolve to be mailed withhold, withdraw or modify in a manner adverse to its stockholders; and
(iii) use its 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 best efforts and lawful to (A) 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 and (B) secure any approval of the stockholders of the Company that is required by the rules of the New York Stock Exchange or the DGCL to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Company Meeting to provide any 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 determined by the Company in good faith, after consultation with outside counsel, to be required by applicable Law) or, if as of the time for which the Company Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) and any other applicable Law voting in favor to effect approve the MergerCompany Voting Proposal or to constitute a quorum necessary to conduct the business of the Company Meeting.
(cb) At Without limiting the Special Meeting or any postponement or adjournment thereof, Parent shall vote, or cause to be voted, all generality of the Shares then owned by itforegoing, Purchaser or any of their other Subsidiaries the Company agrees that, unless this Agreement is validly terminated in favor of accordance with Section 8.1 and, to the adoption extent required under the terms of this Agreement, the Company 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 obligation to duly call, give notice of, convene and hold the Company Meeting shall not be affected by an Adverse Recommendation Change and (ii) its obligations pursuant to this Section 6.5 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposal (whether or not a Superior Proposal). Unless this Agreement and is terminated in accordance with Section 8.1 and, to deliver the extent required under the terms of this Agreement, the Company pays to the Buyer the Company Termination Fee in accordance with Section 8.3(b) or providethe Expense Reimbursement in accordance with Section 8.3(c), in its capacity as a stockholder the Company agrees that it shall not submit to the vote of the Company, ’s stockholders any other approvals that are required by Acquisition Proposal (whether or not a Superior Proposal) prior to the DGCL and any other applicable Law vote of the Company’s stockholders with respect to effect the MergerCompany Voting Proposal at the Company Meeting.
Appears in 1 contract
Stockholders Meeting. (a) If approval of the stockholders of the Company is required under the DGCL by applicable law in order to consummate the Merger, the Company, acting through its Board of Directors, shall, in accordance with applicable law:
(ai) As duly call, give notice of, convene and hold a special meeting of its stockholders (the "Company Stockholders Meeting") as promptly as practicable following the Appointment Time, acceptance for payment and purchase of Shares by Purchaser pursuant to the Company shall Offer for the purpose of considering and taking action upon the approval of the Merger and the approval and adoption of this Agreement;
(ii) prepare and file with the SEC a preliminary proxy for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) information statement relating to the Merger and this Agreement; provided, that Parent, Purchaser Agreement 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 (as hereinafter defined) and, after consultation with PurchaserParent, respond promptly to any comments made by the SEC with respect to the preliminary proxy or information statement and cause a definitive proxy or information statement, including any amendment or supplement thereto (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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 to be mailed to its stockholdersstockholders at the earliest practicable date, provided that no amendment or supplement to the Proxy Statement shall be made by the Company without consultation with Parent and its outside counsel;
(iii) include in the Proxy Statement the recommendation of the Company Board that stockholders of the Company vote in favor of the approval of the Merger and the approval and adoption of this Agreement; and
(iiiiv) use its reasonable best efforts to (A) solicit from its stockholders holders of Shares proxies in favor of the adoption of this Agreement Merger and (B) shall take all other action reasonably necessary or advisable to secure any approval vote or consent of stockholders of the Company that is required by the DGCL and any other applicable Law Delaware law to effect the Merger.
(cb) At Parent shall provide the Special Meeting or any postponement or adjournment thereof, Company with the information concerning Parent and Purchaser required to be included in the Proxy Statement. Parent shall vote, or cause to be voted, all of the Shares then owned by it, Purchaser or any of their its other Subsidiaries subsidiaries or affiliates controlled by Parent in favor of the approval of the Merger and the approval and adoption of this Agreement 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 MergerAgreement.
Appears in 1 contract
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, shallwill take, in accordance with and subject to the requirements of applicable Law and this Agreement its certificate of incorporation and by-laws, all action necessary to establish a record date for, duly call, give notice of, convene a meeting of holders of Shares (including Section 5.2 and Section 8.1):
(i) (Athe "Stockholders Meeting") as promptly as reasonably practicable following after the Appointment Timedate that the SEC staff informs the Company that it has no further comments on the preliminary Proxy Statement, duly set a record date forto consider and vote upon the adoption of this Agreement, and take all action necessary the Company shall conduct in a timely manner a "broker search" in accordance with Rule 14a-13 of the DGCL and Exchange Act in connection therewith; provided that in no event shall the Company Governing Documents be required to duly call hold the Stockholders Meeting prior to the fifth business day after the earlier of (x) the Cut-Off Date and give notice (y) the first date from and after the Go-Shop Period End Date as of a special meeting which no Person qualifies as an Excluded Person. Following the distribution of its stockholders (such meeting or any adjournment or postponement thereofthe Proxy Statement pursuant to Section 6.3, the “Special Meeting”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 Company (and shall be adjourned or postponed by the 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 purpose absence of considering and taking action upon 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 and which the Merger Company Board has determined in good faith (with the record date and meeting date set in after consultation with Purchaser), its outside legal counsel) is necessary under applicable Laws and (B) as promptly as reasonably practicable following the Appointment Time, convene and hold the Special Meeting (and adjourn for such supplemental 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 amended disclosure to be mailed disseminated to its stockholdersand reviewed by the Company's stockholders prior to the Stockholders Meeting; and
or (iiid) to solicit additional proxies if the Company or Parent reasonably believes doing so may be necessary to obtain the Requisite Company Vote. Subject to Section 6.2 hereof, the Company Board shall recommend such adoption and shall use its reasonable best efforts to (A) take customary lawful actions to solicit from its stockholders proxies in favor of the such adoption of this Agreement. For the avoidance of doubt, to the extent the Company Board makes a Change of Recommendation, the Company nevertheless shall continue to submit this Agreement and (B) secure any approval of to the stockholders of the Company that is required by for adoption at the DGCL and any other applicable Law to effect the Merger.
(c) At the Special Stockholders 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 in favor of the adoption of unless this Agreement and shall been terminated in accordance with its terms prior 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 MergerStockholders Meeting.
Appears in 1 contract
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 DirectorsBoard, shall, shall take all actions in accordance with applicable Law, its Certificate of Incorporation and subject By-laws and the rules of The NASDAQ Stock Market to the requirements of applicable Law promptly and this Agreement (including Section 5.2 duly call, give notice of, convene and Section 8.1):
(i) (A) hold as promptly as reasonably practicable following the Appointment Time, duly set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) Meeting for the purpose of considering and taking action voting upon the Company Voting Proposal. Notwithstanding anything to the contrary in this Agreement and Agreement, the Merger (with Company shall not be required to call, give notice of or convene the record date and meeting date set Company Meeting or mail the Proxy Statement, in consultation with Purchaser), and (B) as promptly as reasonably practicable following each case prior to the Appointment Time, convene and hold commencement of the Special Meeting (and adjourn or postpone Exclusivity Period; provided that 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 Company shall cause the Proxy Statement to be mailed to its stockholders; and
the Company’s stockholders as of the record date established for the Company Meeting as promptly as reasonably practicable after the later of (iiii) use its the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement and (ii) the commencement of the Exclusivity Period. Subject to the occurrence of an Adverse Recommendation Change pursuant to Section 6.1, (a) the Company Board shall recommend adoption of the Company Voting Proposal by the stockholders of the Company and include such recommendation in the Proxy Statement and (b) 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. Subject to the occurrence of an Adverse Recommendation Change pursuant to Section 6.1, the Company shall take all action that is both reasonable best efforts and lawful to (A) 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 and (B) secure any approval of the stockholders of the Company that is 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 may adjourn or postpone the Company Meeting to provide any 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 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 applicable 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 other applicable Law information or disclosures that the Company has sent to effect stockholders or otherwise made available by issuing a press release or filing materials with the Merger.
(c) At the Special Meeting or any postponement or adjournment thereof, Parent shall voteSEC), or cause to be voted, all if as of the Shares then owned time for which the Company Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by it, Purchaser or any of their other Subsidiaries proxy) and voting in favor to approve the Company Voting Proposal or to constitute a quorum necessary to conduct the business of the adoption Company Meeting but only until a Company Meeting may be held at which there are a sufficient number of this Agreement shares of Company Common Stock represented (either in person or by proxy) to obtain a quorum or the Company Required Vote (and to deliver or provide, in its capacity as a stockholder no event more than the earlier of 30 days after the Company, any other approvals that are required by originally scheduled meeting and the DGCL and any other applicable Law to effect the MergerOutside Date).
Appears in 1 contract
Stockholders Meeting. If approval of the stockholders of the Company is required under the DGCL in order to consummate the Merger:
(a) As Detective shall as promptly as practicable following the Appointment Timedate of this Agreement call and cause to be held a stockholders meeting for the purpose of approving the Merger and the issuance of the Detective Shares and the Lynx Option and the other matters contemplated by this Agreement including, without limitation, the Company Amended and Restated Certificate of Incorporation of Detective, which shall be in form and substance reasonably satisfactory to Detective and Lynx (the "Amended Charter"), and the election of the Post-Closing Directors. In connection therewith, subject to Section 6.03(b), the Board of Directors of Detective shall declare advisable and recommend the approval of the Merger, the Amended Charter, the election of the Post-Closing Directors to Detective's Board of Directors and such other matters necessary in connection with the consummation of the transactions contemplated herein, and shall prepare and file with the SEC a proxy for under the Special Meeting (together with any amendments thereof or supplements thereto Exchange Act, and any other required 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 connection with such stockholder meeting (the “"Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel Material"). Detective shall be given provide Lynx with a reasonable opportunity to review and comment upon the Proxy Statement before it is filed Material prior to its filing with the SEC and distribution to Detective's stockholders. Detective shall promptly and properly prepare and file any other filings required under the Company shall give due consideration Exchange Act or any other Federal or state laws relating to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. Subject to Section 5.2the transactions contemplated herein (collectively, the Company "Other Filings"). Detective shall include in notify Lynx promptly of the receipt of any comments of the SEC and of any request by the SEC for amendments or supplements to the Proxy Statement Material or by any other governmental official with respect to any Other Filings or for additional information and will supply Lynx with copies of all correspondence between Detective and its representatives, on the recommendation one hand, and the SEC or the members of its staff or any other appropriate government official, on the Company Board of Directors that other hand, with respect to the stockholders of the Company vote in favor of the adoption of this Agreement in accordance with the DGCLProxy Material and any Other Filings. The Company Detective shall use its reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement andMaterial and any Other Filings; and Detective, after consultation with PurchaserLynx, 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 Lynx agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed reasonably cooperate with the SEC and, if any such correction is made following the mailing of the Proxy Statement as provided Detective 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).
(bconnection therewith) 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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 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 in favor of the adoption of this Agreement 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.respond promptly
Appears in 1 contract
Samples: Agreement and Plan of Merger (Data Broadcasting Corporation)
Stockholders Meeting. If (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 stockholders Exchange. If by March 31, 2010, stockholder approval of the Exchange would still be required by applicable NASDAQ rules, the Company is required under the DGCL in order to consummate the Merger:
shall hold a meeting of its stockholders (awhich may be its annual meeting or a special meeting) As as promptly as practicable following to seek approval of the Appointment TimeExchange and the 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 be included therein) and file with the SEC a proxy for the Special Meeting Securities and Exchange Commission (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy StatementSEC”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given as promptly as practicable 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 DGCLpreliminary proxy statement. 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 thereon and to the Proxy Statement promptly after cause a definitive proxy statement related to such stockholders’ meeting or consent to be mailed to the Company’s receipt of such commentsstockholders, 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 use its reasonable best efforts to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser solicit proxies for such stockholder approval of the Proposals. Each of the Investor and their counsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree Company agrees promptly to promptly correct any information provided by it or on its behalf for use in the Proxy Statement 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)respect.
(b) The Company, acting through None of the information supplied by the Company Board of Directors, shall, for inclusion in accordance any proxy statement in connection 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 the DGCL and the Company Governing Documents to duly call and give notice of a special any such stockholders meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 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 or consent will, at the date it is required by filed with the DGCL SEC, when first mailed to the Company’s stockholders and at the time of any other applicable Law to effect stockholders meeting, and at the Merger.
(c) At the Special Meeting time of any amendment or any postponement or adjournment supplement thereof, Parent shall votecontain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, or cause to be voted, all in light of the Shares then owned by itcircumstances under which they are made, Purchaser or any of their other Subsidiaries in favor of the adoption of this Agreement 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 Mergernot misleading.
Appears in 1 contract
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 TimeThe Company will take, 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 applicable law, the DGCL. The Company shall use its reasonable best efforts Certificate of Incorporation and Bylaws, all action necessary to obtain and furnish present 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 Shareholder Approval Proposal (as defined below) for a vote at the Company’s receipt 's 1998 annual meeting of such commentsstockholders, and any written or oral responses thereto. Parent, Purchaser and their counsel which meeting shall be given a reasonable opportunity to review any such written responses and no later than May 31, 1998 (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"Stockholders' Meeting").
(b) The Company's proxy statement for the 1998 annual meeting (as amended or supplemented, acting through the Company "Proxy Statement") shall include a proposal to consider and vote on the Shareholder Approval (the "Shareholder Approval Proposal"). The Proxy Statement shall contain the recommendation of the 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 the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaser), and (B) as promptly as reasonably practicable following the 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 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 Directors of the Company that is required the stockholders approve the Shareholder Approval Proposal. The Company shall notify the Investor promptly of the receipt by it of any comments from the Commission or its staff and of any request by the DGCL Commission for amendments or supplements to the Proxy Statement or for additional information and will supply the Investor with copies of all correspondence between the Company and its representatives, on the one hand, and the Commission or the members of its staff or of any other applicable Law governmental officials, on the other hand, with respect to effect the MergerProxy Statement. Insofar as it relates to the Shareholder Approval Proposal, the Company shall give the Investor and its counsel the reasonable opportunity to review and comment on the Proxy Statement prior to its being filed with the Commission and shall give the Investor and its counsel the reasonable opportunity to review and comment on 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 Commission. The Company shall give reasonable consideration to any comments the Investor or its counsel may provide with respect to the Proxy Statement or any amendment or supplement thereto insofar as it relates to the Shareholder Approval Proposal.
(c) At In the Special Meeting or any postponement or adjournment thereofevent the Shareholder Approval Proposal is not duly approved by the stockholders at the Stockholders' Meeting, Parent the Company shall votetake all reasonable action necessary, or cause in accordance with applicable law, the Certificate of Incorporation and Bylaws to be voted, all present and the Board of the Shares then owned by it, Purchaser or any of their other Subsidiaries in favor of Directors shall recommend the adoption of this Agreement the Shareholder Approval Proposal at each meeting of its stockholders held thereafter until the Shareholder Approval Proposal is duly adopted by the stockholders for so long as the Shareholder Approval is required under the NASD Rules for the exercise of any Series B Warrant for Common Stock.
(d) Other than with respect to any information with respect to any member of the Investor Group supplied to the Company by such member of the Investor Group in writing specifically for inclusion in the Proxy Statement as to which information the Company makes no representation or warranty, the Company hereby represents and warrants that the Proxy Statement, as of the date thereof and as of the date of the Stockholders' Meeting, will not include an untrue statement of a material fact or omit to deliver state a material fact required to be stated therein or providenecessary to make the statements therein, in its capacity as a stockholder light of the Companycircumstances under which they will be made, any other approvals not misleading.
(e) The Investor hereby represents and warrants that are the Proxy Statement, as of the date thereof and as of the date of the Stockholders' Meeting, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they will be made, not misleading, to the extent, and only to the extent that such statement or omission was made in reliance upon and in conformity with written information with respect to the Investor and its Affiliates supplied to the Company by the DGCL and any other applicable Law to effect Investor specifically for inclusion in the MergerProxy Statement.
Appears in 1 contract
Stockholders Meeting. If approval of Within three (3) Business Days after the stockholders of the Company is required under the DGCL in order to consummate the Merger:
(a) As promptly as practicable following the Appointment Timedate hereof, the Company shall prepare and file with make the SEC a proxy for the Special Meeting inquiry (together with any amendments thereof or supplements thereto and any other required proxy materialse.g., the “Proxy Statementbroker search”) relating required by Rule 14a-13(a)(1) under the Exchange Act. As soon as practicable following completion of the “broker search” required by the immediately preceding sentence, the Company shall establish a record date for a Stockholders Meeting. The Company shall not change the record date or adjourn the Stockholders Meeting without the prior written consent of Parent (such consent not to the Merger and this Agreementbe unreasonably withheld, conditioned or delayed); provided, however, that Parentif at any time the current record date for the Stockholders Meeting is not reasonably likely to satisfy the requirements of applicable Law, Purchaser and their counsel shall be given the certificate of organization or bylaws of the Company, the Company shall, in consultation with Parent Holdco, set a reasonable opportunity new record date. Unless there has been a Change of Recommendation, the Company shall, through the Company Board, recommend to review its stockholders that they give the Proxy Statement before it is filed with the SEC and Stockholder Approval. Unless there has been a Change of Recommendation, the Company shall give due consideration to all use its reasonable additionsbest efforts to, deletions or changes suggested thereto by Parentfollowing clearance of the Proxy Statement, Purchaser (i) solicit from its stockholders proxies in favor of adopting this Agreement and their counsel(ii) secure the Stockholder Approval. 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, shalltake, in accordance with and subject to the requirements of applicable Law and this Agreement its certificate of incorporation and bylaws, all reasonable action necessary to duly call, convene and hold a meeting of holders of Shares (including Section 5.2 and Section 8.1):
(i) (Athe “Stockholders Meeting”) as promptly as reasonably practicable following the Appointment Timemailing of the Proxy Statement (not sooner than twenty (20) Business Days and in any event within thirty-five (35) days following such mailing) to consider and vote upon the adoption of this Agreement; provided, duly set that the Company may postpone or adjourn to a record later date for, and take all action necessary in accordance the Stockholders Meeting (i) with the DGCL and the Company Governing Documents to duly call and give notice consent of a special meeting of its stockholders Parent (such meeting which consent shall not be unreasonably withheld, conditioned or any adjournment or postponement thereof, the “Special Meeting”) for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with Purchaserdelayed), and (B) as promptly as reasonably practicable following the 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 to allow time for the Appointment Timefiling and dissemination of any supplemental or amended disclosure document that the Company Board has determined, file the definitive Proxy Statement after consultation with the SEC and cause the Proxy Statement outside legal counsel, in good faith is required to be mailed to its stockholders; and
filed and disseminated under applicable Law, (iii) use if there are insufficient Shares represented (either in Person or by proxy) to constitute a quorum necessary to conduct the business of the Stockholders Meeting, (iv) if the Company has not received proxies representing a sufficient number of shares of Common Stock to adopt this Agreement, (v) if required by applicable Law, or (vi) 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 reasonable best efforts to fiduciary obligations under applicable Law; provided, that any such postponement or adjournment shall not, in the aggregate, exceed twenty (A20) solicit from its stockholders proxies in favor days, except as required by applicable Law or by the Company’s certificate of incorporation or bylaws. Without the prior written consent of Parent, the adoption of this Agreement and (B) secure any the approval of stockholders the Merger shall be the only matter (other than (x) procedural matters and (y) an advisory vote with respect to golden parachute compensation arrangements in accordance with applicable federal securities laws) which the Company shall propose to be acted on at the Stockholders Meeting. The Company shall, upon the request of Parent, advise Parent at least on a daily basis on each of the Company that is required last five (5) Business Days prior to the scheduled date of the Stockholders Meeting as to the aggregate tally of affirmative proxies received by the DGCL and any other applicable Law to effect the MergerCompany.
(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 in favor of the adoption of this Agreement 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.
Appears in 1 contract
Samples: Merger Agreement (Global Brass & Copper Holdings, Inc.)
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 Promptly after the Appointment Timeexecution of this Agreement, and in any event within ten (10) business days after the date hereof, the Company shall prepare prepare, and the Company shall file with the SEC, preliminary proxy materials (including a preliminary Proxy Statement). Parent shall provide promptly to the Company such information concerning Parent and Merger Sub as may be reasonably requested by the Company for inclusion in the Proxy Statement. At the earliest practicable time (and in any event within five (5) business days) following the later of (i) receipt and resolution of the SEC comments on the preliminary Proxy Statement, and (ii) the expiration of the ten (10)-day waiting period provided in Rule 14a-6(a) promulgated under the Exchange Act, the Company shall file definitive proxy materials (including the definitive Proxy Statement) with the SEC and cause the definitive Proxy Statement to be mailed to its stockholders. Unless the Company Board shall have effected a proxy for the Special Meeting (together Change in Recommendation in accordance with Section 6.3(b), prior to filing any amendments thereof Proxy Statement or supplements thereto and any other required proxy materialsfiling with the SEC in connection with the Transactions, the “Proxy Statement”) relating to the Merger Company shall provide Parent and this Agreement; provided, that Parent, Purchaser and their its counsel shall be given a with reasonable opportunity to review the Proxy Statement before it is filed with the SEC and comment on each such filing in advance, and the Company shall give due consideration to in good faith consider including in such filings all reasonable additions, deletions or changes suggested thereto comments reasonably proposed by Parent. All documents that the Company files with the SEC in connection with the Merger or the other Transactions, Purchaser including the Proxy Statement, will comply as to form and their counsel. Subject to Section 5.2substance in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the rules and regulations thereunder. Table of Contents
(b) The Company shall include in notify Parent promptly of the receipt of any oral or written comments from the SEC or its staff (or of notice of the SEC’s intent to review the preliminary Proxy Statement) and of any request by the SEC or its staff for amendments or supplements to 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 or any other filing with the DGCLSEC in connection with the Transactions or for additional/supplemental information in connection therewith. The Company shall use its reasonable best efforts to obtain and furnish shall, as promptly as practicable after the information required to be included by the SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly to any receipt of such 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 or any other such filing, (i) supply Parent with copies of such commentsall written correspondence received in connection therewith, and (ii) provide Parent a reasonably detailed description of any written or oral responses theretocomments received in connection therewith. ParentUnless the Company Board shall have effected a Change in Recommendation in accordance with Section 6.3(b), Purchaser and their counsel the Company (x) shall be given provide Parent with a reasonable opportunity to review and comment on any responses to comments or inquiries by the SEC with respect to any filings related to the Transactions, (y) shall consider in good faith including in such written responses response all comments reasonably proposed by Parent in respect of the filings and (z) shall provide Parent and its counsel a reasonable opportunity to participate in any discussions or meetings with the SEC or its staff with respect to such filings. The Company shall respond promptly in good faith to any comments by the SEC and if, at any time prior to the Effective Time, any event or information relating to the Company, Parent, Merger Sub, or any of their affiliates, should be discovered by Parent or the Company which should be set forth in an amendment or supplement to the Proxy Statement, so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein not false or misleading, the party which discovers such information shall promptly notify the other parties and the Company shall give due consideration to all reasonable additions, deletions cause an appropriate amendment 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 supplement describing 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 as promptly as practicable thereafter 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 applicable Law or Order, disseminated to the Exchange Act or stockholders of the SEC (or its staff)Company.
(bc) 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 shall take all action necessary in accordance with the DGCL applicable Law, Order and the Company Governing Documents Company’s Certificate of Incorporation and By-laws (i) to duly call and call, give notice of of, convene and hold a special meeting of its stockholders as promptly as practicable, and in any event (such meeting or any adjournment or postponement thereofto the extent permissible under applicable Law and Order) within forty-five (45) days after the mailing of the definitive Proxy Statement to the stockholders of the Company, the “Special Meeting”) for the purpose of considering and taking action upon the adoption of this Agreement (the “Stockholders’ Meeting”), and (ii) unless the Merger Company Board shall have effected a Change in Recommendation in accordance with Section 6.3(b), (with A) include in the record date and meeting date set Proxy Statement the Company Board’s recommendation that the holders of the Company Shares vote in consultation with Purchaserfavor of the adoption of this Agreement (which recommendation shall be deemed a part of the Company Board Recommendation), and (B) as promptly as reasonably practicable following the 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 to be mailed to its stockholders; and
(iii) use its reasonable best efforts to (A) solicit from its the stockholders of the Company proxies in favor of the adoption of this Agreement and (B) secure any approval of stockholders the vote or consent of the Company that is Company’s stockholders as required by the rules of NYSE, the DGCL and any or other applicable Law to effect the Merger.
. The Company shall give Parent no less than ten (c10) At business days advance notice (or such shorter period of time as notice is provided to the Special Meeting or any postponement or adjournment thereof, Parent shall vote, or cause to be voted, all NYSE) of the Shares then owned by it, Purchaser or any of their other Subsidiaries in favor of date which shall be set as the adoption of “record date” for the Company’s stockholders eligible to vote on this Agreement and to deliver or provide, in its capacity as a stockholder the Transactions. The Company shall consult with Parent regarding the date of the CompanyStockholders’ Meeting and shall not postpone or adjourn the Stockholders’ Meeting without the prior written consent of Parent; provided, any other approvals however, that are required by nothing herein shall prevent the DGCL Company from postponing or adjourning (one time only for no more than five (5) business days in the case of clause (w) and any other applicable Law one time only for no more than seven (7) business days in the case of clause (y)) the Stockholders’ Meeting if and to effect the Merger.extent that:
Appears in 1 contract
Samples: Merger Agreement (Intel Corp)
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 Timedate of this Agreement (and in any event within ten (10) Business Days), the Company shall prepare and file as promptly as practicable with the SEC Securities and Exchange Commission (the “SEC”) a proxy for a special meeting of the Company’s stockholders (the “Special Meeting 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 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, Purchaser Merger Sub and their counselcounsel 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 date of this Agreement. Parent and Merger Sub shall promptly furnish to the Company 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 5.25.2(c) hereof, 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 DGCLDGCL (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 information required to be included by the SEC in the Proxy Statement and, after consultation with PurchaserMerger Sub, respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Purchaser Merger Sub 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 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, Purchaser Merger Sub and their counsel. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to the Company’s stockholders unless it has first obtained the consent of Parent and Merger Sub to such mailing, which consent shall not be unreasonably withheld, conditioned or delayed. The Company, on the one hand, and Parent and PurchaserMerger 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 such information it shall have become false or misleading in any material respect or as otherwise required by applicable LawsLaw, 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)(ii1.6(b)(ii), mailed to holders of shares (the “Shares”) of 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 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):Law:
(i) (A) as promptly as reasonably practicable following the Appointment Time, duly date of this Agreement set a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereof, the “Special Meeting”) Meeting for the purpose of considering and taking action upon this Agreement and the Merger (with the record date and meeting date set in consultation with PurchaserMerger 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 that it 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 reasonably practicable following the Appointment Timedate of this Agreement, convene and hold the Special Meeting (and adjourn or postpone the Special Meeting in accordance with Purchaser’s direction)Meeting;
(ii) as promptly as reasonably practicable following the Appointment Time, file cause the definitive Proxy Statement with the SEC and cause the Proxy Statement to be mailed to its stockholders; and
(iii) use its reasonable best efforts to to: (A) solicit from its stockholders proxies in favor of the adoption of this Agreement 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 in favor of the adoption of this Agreement 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.
Appears in 1 contract
Samples: Merger Agreement (Teradyne, Inc)
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 Timedate hereof, the Company shall prepare and file with the SEC Securities and Exchange Commission (the “SEC”), a proxy for the Special Meeting statement (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) for a special meeting of its stockholders ((including any adjournment or postponement thereof) the “Special Meeting”) 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 Company Board Recommendation (unless the Company Board of Directors that the stockholders of the withdraws or modifies its Company vote in favor of the adoption of this Agreement Board Recommendation in accordance with the DGCLSection 5.2). 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 31344360_15 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)(ii1.6(b), mailed to holders of the Shares, 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 the SEC (or its staff).
(b) The Subject to Section 1.6(a), the Company, acting through the Company Board of Directors, shall, shall take all actions in accordance with applicable Law, its Company Governing Documents and subject the rules of the Nasdaq 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 establish a record date for, and take all action necessary in accordance with the DGCL and the Company Governing Documents to duly call and call, give notice of a special meeting of its stockholders (such meeting or any adjournment or postponement thereofof, convene and hold as promptly as practicable the “Special Meeting”) Meeting for the purpose of considering and taking action upon this Agreement and obtaining the Merger (with the Requisite Stockholder Approval; provided, that such record date and meeting shall be established no later than ten (10) business days after the date set in consultation with Purchaser), and on which the SEC (Bor the staff of the SEC) as promptly as reasonably practicable following confirms that it has no further comments on the 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 shall cause the Proxy Statement to be mailed to its stockholders; and
(iii) stockholders at the earliest possible time after resolution of such comments. Subject to Section 5.2, the Company shall use its reasonable best efforts to (A) solicit and obtain from its stockholders proxies giving the Requisite Stockholder Approval and proxies necessary to adjourn or postpone the Special Meeting to solicit additional proxies if there are insufficient votes at the time of the Special Meeting for the Requisite Stockholder Approval and shall take other actions reasonably necessary to secure the vote or consent of the stockholders of the Company required by the Company Charter Documents and the rules of the Nasdaq. Notwithstanding anything to the contrary contained in favor this Agreement, the Company may adjourn or postpone the Company Stockholders Meeting (i) after consultation with Parent, and with Parent’s consent, to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the stockholders of the Company within a reasonable amount of time in advance of the Special Meeting, (ii) if as of the time for which the Special Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Special Meeting; provided that, in each case, such adjournment or postponement does change the record date. Notwithstanding the foregoing, Parent may require the Company to adjourn or postpone the Special Meeting one (1) time (for a period of not more than 30 calendar days but not past the Outside Date), unless prior to such adjournment the Company shall have received an aggregate number of proxies voting for the adoption of this Agreement and (Bthe Transactions, which have not been withdrawn, such that the condition in Section 7.1(a) secure any approval of stockholders of will be satisfied at such meeting. Once the Company that is required by has established a record date for the DGCL and any other applicable Law to effect Special Meeting, the Merger.
(c) At Company shall not change such record date or establish a different record date for the Special Meeting without the prior written consent of Parent, unless required to do so by applicable Law (including, in the 31344360_15 event that the Special Meeting is adjourned or any postponed in accordance with this Section 1.6, by implementing such adjournment or postponement in such a way that the Company does not establish a new record date for the Special Meeting, as so adjourned or adjournment thereofpostponed). The Company shall, upon the reasonable request of Parent, advise Parent shall vote, or cause to be voted, all at least on a daily basis on each of the Shares then owned last ten (10) business days prior to the date of the Special Meeting as to the aggregate tally of proxies received by itthe Company with respect to the Requisite Stockholder Approval. Without the prior written consent of Parent, Purchaser or any of their other Subsidiaries in favor of except as required by applicable Law, the adoption of this Agreement and the Transactions shall be the only matter (other than procedure matters) which the Company shall propose to deliver or provide, in its capacity as a stockholder be acted on by the stockholders of the Company, any other approvals that are required by Company at the DGCL and any other applicable Law to effect the MergerSpecial Meeting.
Appears in 1 contract
Samples: Merger Agreement (Presstek Inc /De/)
