Stockholders Meeting. 5.5(a) The Company, acting through the Company Board, shall take all actions in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Kratos Defense & Security Solutions, Inc.), Agreement and Plan of Merger and Reorganization (Sys), Agreement and Plan of Merger and Reorganization (Sys)
Stockholders Meeting. 5.5(a) The Company, acting through the Company Board, shall take all actions in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b)fiduciary obligations under applicable Law, to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend if adoption of this Agreement by the shareholders holders of Shares is required under applicable Law and Parent has not notified the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectuspursuant to Section 7.4(b), (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts have the right any time after February 8, 2011 to solicit from its shareholders proxies (and Parent and Merger Sub shall have the right, at any time after the later of February 8, 2011 and the date on which all the conditions set forth in favor Sections 8.2(c) and 8.3(c) are satisfied or waived, to request in writing that the Company, and upon receipt of such written request the Company shall as promptly as practicable) take all action necessary in accordance with applicable Law, the rules of the Company Voting Proposal NYSE and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting certificate of incorporation and the generality bylaws of the foregoingCompany, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of holders of Shares (the “Stockholders Meeting”) as promptly as practicable after the date of mailing of the Proxy Statement, to consider and vote upon the adoption of this Agreement; provided, however, for the avoidance of doubt, the Company may postpone, recess or adjourn the Stockholders Meeting, but no longer than reasonably necessary, (i) with the consent of Parent; (ii) for the absence of a quorum; (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 has determined in good faith after consultation with outside 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 7.2(e) that it intends to take action pursuant to Section 9.3(a) and the deadline contemplated by Section 7.2(e) with respect to such notice has not been reached. Subject to Section 7.2(e), 7.2(f) and 9.3(a), the Board of Directors of the Company shall recommend adoption of this Agreement by the holders of Company Common Stock, as required by this SectionShares, shall not be affected include the Company Recommendation in the Proxy Statement and shall take all reasonable lawful action to solicit adoption of this Agreement by the withdrawalholders of Shares. Notwithstanding any Change in Recommendation, amendment unless this Agreement is terminated pursuant to, and in accordance with, Article IX or modification of the recommendation by Parent has notified the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to Section 7.4(b), this Section Agreement shall not be affected by the commencement, public proposal, public disclosure or communication submitted to the Company holders of any Acquisition ProposalShares at the Stockholders Meeting for the purpose of adopting this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Icahn Enterprises L.P.), Agreement and Plan of Merger (Dynegy Inc.)
Stockholders Meeting. 5.5(a) The CompanyCompany shall, acting through as soon as practicable following the Company Board, shall take all actions in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption date of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/ProspectusAgreement, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of its stockholders (the holders "Stockholders Meeting") for the purpose of Company Common Stockconsidering, as required by two separate proposals: (a) the adoption of this Section, shall not Agreement; and (b) the approval of amendments to the Company's Restated Certificate of Incorporation to be affected effected by the withdrawalMerger, amendment or modification of if so approved, providing for, among other things, (i) the recommendation by the Company Board or committee thereof and proposed classified Board, (ii) the elimination of the stockholders' ability to act by written consent and to call a special meeting, (iii) the requirement of a supermajority vote for (A) stockholders to amend the Surviving Corporation By-Laws and (B) any amendment to the Surviving Corporation Certificate of Incorporation that would affect the Governance Provisions, (iv) the implementation of limits on Board size and (v) the ability to fill Board vacancies and newly created directorships, all as set forth in Exhibit A-1(a) hereto (the "Governance Provisions"), to become effective solely upon effectiveness of the Merger. The Company agrees that shall, through its obligations pursuant Board of Directors, recommend to its stockholders adoption of this Section Agreement and shall not withdraw, change or modify such recommendation; provided, however, that the Company's Board of Directors may withdraw, change or modify such recommendation if it determines in good faith, after consultation with outside counsel, that it would be affected by inconsistent with the commencement, public proposal, public disclosure or communication Board's fiduciary duties to the stockholders of the Company of any Acquisition Proposalnot to withdraw, change or modify such recommendation.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Unitrin Inc), Curtiss Wright Corp
Stockholders Meeting. 5.5(a) The Company, acting through the Company Board, shall take all actions in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American NASDAQ Stock Exchange Market to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 forty-five (45) days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company ShareholdersStockholders’ Meeting for the purpose of considering and voting upon the Company Voting ProposalProposal (as defined below). Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Merger Agreement by the shareholders stockholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders stockholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Stockholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (On Semiconductor Corp), Agreement and Plan of Merger and Reorganization (Amis Holdings Inc)
Stockholders Meeting. 5.5(a) The Company, acting through the Company Boardits Board of Directors, shall (a) as soon as reasonably practicable following the date of this Agreement, take all actions in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of its stockholders for the purpose of adopting this Agreement (the “Stockholders Meeting”), (b) include in the Proxy Statement the recommendation of the Board of Directors that the stockholders of the Company vote in favor of the adoption of this Agreement (the “Recommendation”) and (c) use its reasonable best efforts to obtain the adoption of this Agreement by the holders of a majority of the outstanding shares of Common Stock (the “Company Common StockRequisite Vote”); provided that the Board of Directors of the Company may fail to make or may withdraw, as modify or change the Recommendation and/or may fail to use such efforts if it shall have determined in good faith, after consultation with outside legal counsel to the Company, that such action is required by its fiduciary duties under applicable law. Notwithstanding anything to the contrary contained in this SectionAgreement, shall not be affected unless this Agreement is terminated in accordance with Section 8.1, the Company, regardless of whether the Board of Directors of the Company has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Recommendation, but in compliance with the DGCL, will call, give notice of, convene and hold the Stockholders Meeting as soon as reasonably practicable after the date of this Agreement and will submit this Agreement for adoption by the withdrawal, amendment or modification stockholders of the recommendation by Company at the Stockholders Meeting. The Company and Parent will discuss the advisability of the Company Board or committee thereof and (ii) retaining the Company agrees that its obligations pursuant to this Section shall not be affected by services of a proxy solicitation company in connection with the commencement, public proposal, public disclosure or communication to the Company of any Acquisition ProposalStockholders Meeting.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Jekogian Iii Nickolas W), Agreement and Plan of Merger (Wilshire Enterprises Inc)
Stockholders Meeting. 5.5(a(a) The Company, acting through the Company Board, shall take all actions action necessary in accordance with Legal Requirementsthe Delaware Law and the Company Charter Documents to call, the Organizational Documents hold and convene a meeting of the Company and stockholders (the rules of The American Stock Exchange “Stockholder Meeting”) to promptly and duly call, give notice of, convene and hold be held as promptly as practicable, reasonably practicable following the date of this Agreement and in any event will use commercially reasonable efforts (to the extent permissible under Applicable Law) to cause the Stockholder Meeting to be convened within 45 forty-five (45) days after the declaration of effectiveness mailing of the Form S-4 Registration Statement, the Proxy Statement to Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposalstockholders. Subject to Section 5.1(b6.4(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its commercially reasonable best efforts to solicit from its shareholders stockholders proxies in favor of the Company Voting Proposal adoption and approval of this Agreement, the approval of the Merger and the other transactions contemplated hereby, and shall take all other action required by the Delaware Law, all other Applicable Law and the applicable rules and regulations of Nasdaq to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholder Meeting after consultation with Parent to the extent necessary to ensure that any necessary supplement or advisable amendment to secure the Required Company Shareholder Vote. Without limiting Proxy Statement is provided to its stockholders in advance of a vote on the generality Merger and this Agreement or, if as of the foregoingtime for which the Stockholder Meeting is scheduled (as set forth in the Proxy Statement) there are insufficient Company Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Stockholder Meeting. The Company shall ensure that the Stockholder Meeting is called, (i) noticed, convened, held and conducted, and that all proxies solicited by it in connection with the Stockholder Meeting are solicited in compliance with the Delaware Law, the Company agrees that its obligation to duly call, give notice of, convene Charter Documents and hold a meeting the applicable rules and regulations of the holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition ProposalNasdaq.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Axway Inc.), Agreement and Plan of Merger (Tumbleweed Communications Corp)
Stockholders Meeting. 5.5(a) The As soon as reasonably practicable following the date of this Agreement, the Company, acting through the Company Boardits Board of Directors, shall take all actions in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of its stockholders for the purpose of adopting this Agreement (the “Stockholders Meeting”), (ii) include in the Proxy Statement the recommendation of the Board of Directors that the stockholders of the Company vote in favor of the adoption of this Agreement and, subject to the approval of each Financial Advisor, as applicable, the written opinions of the Financial Advisors, dated as of the date hereof, that, as of such date, the Merger Consideration is fair, from a financial point of view, to the holders of the Class A Common Stock and Class B Common Stock (other than members of the Xxxxx Family Group) and (iii) use its reasonable best efforts to obtain the Company Common StockRequisite Vote; provided that the Board of Directors of the Company may fail to make or withdraw, as modify or change such recommendation and/or may fail to use such efforts (subject to the Company having (A) provided Parent at least three business days’ prior written notice of the Company’s Board of Directors’ intention to do so and (B) complied with its obligations under Section 6.5 in all material respects) if it shall have determined in good faith, after consultation with outside counsel to the Company, that such action is required by in order for the Board of Directors to comply with its fiduciary duties under applicable Law. Notwithstanding anything to the contrary contained in this SectionAgreement, the Company shall not be affected by required to hold the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to Stockholders Meeting if this Agreement is terminated in accordance with Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposal8.1.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Neiman Marcus, Inc.), Agreement and Plan of Merger (Neiman Marcus, Inc.)
Stockholders Meeting. 5.5(a(a) The Company, acting through the Company Board, shall take all actions shall, in accordance with Legal Requirementsapplicable Law and its Articles of Incorporation and Bylaws, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a special meeting of its stockholders (the holders of “Company Common Stock, Stockholders Meeting”) as required by this Section, shall not be affected soon as reasonably practicable following the clearance by the withdrawal, amendment or modification SEC of the Proxy Statement for the purpose of considering and voting upon the approval and adoption of this Agreement, the Merger and such other matters as may be necessary to effectuate the Transactions. The Company Board shall (i) recommend to the stockholders of the Company the approval and adoption of this Agreement and the Merger, (ii) include in the Proxy Statement such favorable recommendation by of the Company Board that the stockholders of the Company vote in favor of the approval and adoption of this Agreement, (iii) take all lawful actions to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, except in the event and to the extent the Company Board makes an Adverse Recommendation in accordance with Section 5.10(b). For purposes of this Agreement, a “Adverse Recommendation” shall be deemed to have occurred if: (i) the Company Board or any committee thereof and withdraws, modifies or changes its recommendation of this Agreement, the Merger or the Transactions in a manner adverse to Parent or shall have resolved or announced an intention to do so; (ii) the Company agrees that its obligations pursuant to this Section Board shall not be affected by the commencement, public proposal, public disclosure or communication have recommended to the Company’s stockholders a competing Transaction or shall have resolved to do so or shall have entered into any letter of intent, memorandum of understanding, agreement in principle, merger agreement acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or similar document or any agreement, contract or commitment accepting any competing Transaction; (iii) the Company shall have failed to include in the Proxy Statement the recommendation of any Acquisition Proposalthe Company Board in favor of the approval and adoption of this Agreement and the approval of the Merger or (iv) the Company fails to call the Company Stockholders Meeting.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Quantrx Biomedical Corp), Agreement and Plan of Merger (Nurx Pharmaceuticals, Inc.)
Stockholders Meeting. 5.5(a) The Company, acting through the Company Board, shall take all actions in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor efforts, as soon as practicable following the date of this Agreement and the receipt of clearance of the Company Voting Proposal and shall take all other action necessary or advisable Proxy Statement from the SEC, to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoingestablish a record date for, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders Stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Stockholder Approval; provided that such date may be extended to the extent reasonably necessary to permit the Company Common Stock, to file and distribute any material amendment to the Proxy Statement as is required by applicable Law. Subject to Section 6.02, the Company Board shall recommend to the Stockholders adoption of this Section, Agreement and the Merger and shall include the Company Board Recommendation in the Proxy Statement. A Change in Recommendation permitted by Section 6.02 will not be affected by the withdrawal, amendment or modification of the recommendation constitute a breach by the Company Board or committee thereof and (ii) of this Agreement. Without limiting the Company agrees that its generality of the foregoing, but subject to the terms of this Agreement, the Company’s obligations pursuant to the first sentence of this Section 7.01(c) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Takeover Proposal (whether or not a Superior Proposal). In addition, notwithstanding any Change in Recommendation, unless this Agreement is terminated pursuant to, and in accordance with, Section 9.01, this Agreement shall be submitted to the Stockholders at the Stockholders’ Meeting for the purpose of adopting this Agreement. The Company may, at the discretion of the Company Board or the Special Committee, engage one or more proxy solicitors in connection with the solicitation of proxies or votes from the Stockholders to be cast at the Stockholders’ Meeting.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Synergx Systems Inc), Agreement and Plan of Merger (Firecom Inc)
Stockholders Meeting. 5.5(a) The CompanyCompany will take, acting through the Company Board, shall take all actions in accordance with Legal Requirementsapplicable Law and its certificate of incorporation and bylaws, all action necessary to convene a meeting of holders of Shares (the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold “Stockholders Meeting”) as promptly as practicablepracticable after the date hereof, to consider and vote upon the adoption of this Agreement, and in any event within 45 days after shall not postpone or adjourn such meeting except to the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposalextent required by Law. Subject to Section 5.1(b)6.06 hereof, to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend the adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal Requisite Stockholder Approval and shall take all other lawful action necessary or advisable to secure the Required Company Shareholder Votesolicit such adoption of this Agreement. Without limiting the generality The obligation of the foregoing, (i) Company to hold the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, Stockholders Meeting shall not be affected by the withdrawal, amendment any Acquisition Proposal or modification of the recommendation by the Company Board other event or committee thereof circumstance and (ii) the Company agrees that it will not submit any Acquisition Proposal to its stockholders for a vote, unless this Agreement is terminated in accordance with its terms. Notwithstanding the foregoing, the Company’s obligations pursuant to under this Section 6.09 shall not be affected by discharged in the commencementevent that a true and correct copy of the executed irrevocable written consent in the form attached hereto as Exhibit B (the “Written Consent”) adopting and approving this Agreement and the Merger, public proposaland constituting the Requisite Stockholder Approval, public disclosure or communication shall have been signed, dated and delivered to the Company in accordance with Section 228 of any Acquisition Proposalthe DGCL (and a copy thereof shall have been delivered to Purchaser).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pacific Capital Bancorp /Ca/), Agreement and Plan of Merger (Unionbancal Corp)
Stockholders Meeting. 5.5(a(a) The CompanyCompany shall, acting through as promptly as practicable after the Company Boarddate hereof, shall take all actions necessary in accordance with Legal Requirementsfederal securities laws, the Organizational Documents DGCL and its certificate of the Company incorporation and the rules of The American Stock Exchange by-laws to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company ShareholdersStockholders’ Meeting to be held on the earliest practicable date determined in consultation with Parent for the purpose of considering and voting upon this Agreement and the Company Voting ProposalMerger. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”6.01(a) and include such recommendation in the Joint Proxy Statement/ProspectusSection 6.01(e) and unless there has been a Change of Recommendation, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its all reasonable best efforts to solicit from its shareholders stockholders of the Company proxies in favor of the adoption of this Agreement and the Merger. Notwithstanding any Change of Recommendation, the Company Voting Proposal shall nevertheless submit this Agreement and shall take all other action necessary or advisable the Merger to secure the Required Company Shareholder Vote. Without limiting the generality stockholders of the foregoing, (i) Company for the purpose of obtaining the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by Stockholder Approval at the Company Board or committee thereof Stockholders’ Meeting and (ii) nothing contained herein shall be deemed to relieve the Company agrees that of such obligation, unless this Agreement shall have been terminated in accordance with its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication terms prior to the Company Stockholders’ Meeting. Other than a Superior Proposal that the Board of Directors of the Company has resolved to accept and given notice to Parent of in accordance with Section 8.01(h), the Company shall not 37 submit to the vote of its stockholders any Acquisition Proposal; provided, that the foregoing shall not affect any rights set forth in Section 6.01.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (National Oilwell Varco Inc), Agreement and Plan of Merger (Grant Prideco Inc)
Stockholders Meeting. 5.5(aThe Company (at the direction of the Special Committee) The Companywill take, acting through the Company Board, shall take all actions in accordance with Legal Requirementsapplicable Law and its certificate of incorporation and by-laws, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its all reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, Shares (the “Stockholders Meeting”) as required by promptly as reasonably practicable after the execution of this Section, shall not be affected by Agreement to consider and vote upon the withdrawal, amendment or modification adoption and approval of this Agreement and approval of the recommendation by Merger, and shall solicit proxies in accordance with applicable Law with respect to adoption and approval of the Agreement and approval of the Merger; provided, however, for the avoidance of doubt, the Company may postpone or adjourn such stockholders meeting (i) with the consent of Dimensional; (ii) for the absence of a quorum; or (iii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Company Board has determined in good faith after consultation with outside counsel is necessary under applicable Law and for such supplemental or committee thereof amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to such stockholders meeting. Subject to a Board Recommendation Change pursuant to Section 7.4(b), the Company Board and the Special Committee shall recommend such adoption and approval of this Agreement and approval of the Merger and shall take all actions reasonably requested by Dimensional to obtain the Company Requisite Vote, including (iiwithout limitation) the Company agrees that its obligations engagement of a proxy solicitation firm, in each case at the sole cost and expense of the Company. Notwithstanding anything to the contrary in this Agreement, the Company’s obligation to establish a record date for, call, give notice of, convene and hold the Stockholders Meeting pursuant to this Section 7.5 shall not be limited to, or otherwise affected by by, the commencement, public proposaldisclosure, public disclosure announcement or communication to the Company submission of any Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Orchard Enterprises, Inc.), Agreement and Plan of Merger (Dimensional Associates, LLC)
Stockholders Meeting. 5.5(a) The CompanySeller shall use its best efforts, acting through the Company Board, shall take all actions in accordance with Legal Requirementsapplicable law and its certificate of incorporation and bylaws, the Organizational Documents to convene a meeting of the Company and holders of Seller Common Stock (the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold "Stockholder Meeting") as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting practicable for the purpose of considering and voting upon on approval and adoption of the Company Voting Proposaltransactions provided for in this Agreement, no later than March 31, 2002. Subject The board of directors of Seller shall (a) recommend that the holders of Seller Common Stock vote in favor of and approve the Merger and adopt this Agreement, and (b) use its best efforts to Section 5.1(b)solicit such approvals; PROVIDED, HOWEVER, that the board of directors of Seller is not required to recommend that the holders of Seller Common Stock vote in favor of and approve the Merger and adopt this Agreement and solicit such approvals if and only to the fullest extent permitted by applicable Legal Requirements, that there is a BONA FIDE written Acquisition Proposal and (i) the Company Board shall recommend adoption board of this Agreement by directors of Seller, after consultation with outside legal counsel, in good xxxxx xxxxx such action to be inconsistent with the shareholders proper discharge of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof fiduciary duties under applicable law and (ii) the Company agrees board of directors of Seller determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making the proposal and would, if consummated, result in a more favorable transaction than the transaction contemplated by this Agreement. Seller, in consultation with Purchaser, shall employ professional proxy solicitors to assist in contacting its obligations pursuant to this Section stockholders in connection with soliciting favorable votes on the Merger. Seller shall not be affected by the commencement, public proposal, public disclosure or communication consult Purchaser with respect to the Company timing of any Acquisition Proposalthe Stockholder Meetings.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Yonkers Financial Corp), Atlantic Bank of New York
Stockholders Meeting. 5.5(a(a) The Company, acting through the Company BoardBoard and/or the Special Committee, shall take all actions in accordance with Legal Requirementsapplicable law, the Organizational Company Charter Documents of the Company and the rules of The American Stock Exchange NASDAQ National Market to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, practicable the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements6.1, (i) the Company Board shall recommend adoption of this Agreement by the shareholders approval of the Company (Voting Proposal by the “stockholders of the Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect not withhold, withdraw or modify in a manner adverse to Parent, or publicly propose or resolve to withhold, withdraw or modify in a manner adverse to Parent, the recommendation of the Company Adverse Recommendation Change Board that the Company’s stockholders vote in favor of the Company Voting Proposal, and (iii) the Company shall use its take all action that is both reasonable best efforts and lawful to solicit from its shareholders stockholders proxies in favor of the Company Voting Proposal and shall take all other action reasonably necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality vote or consent of the foregoing, (i) stockholders of the Company agrees required by the rules of The NASDAQ National Market or the DGCL to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company, with the prior approval of Parent may adjourn or postpone the Company Meeting to the extent necessary to ensure that its obligation any required supplement or amendment to duly callthe Proxy Statement is provided to the Company’s stockholders or, give notice of, convene and hold a meeting if as of the holders time for which the Company Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock, as required Stock represented (either in person or by this Section, shall not be affected by proxy) to constitute a quorum necessary to conduct the withdrawal, amendment or modification business of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition ProposalMeeting.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Encore Medical Corp), Agreement and Plan of Merger (Encore Medical, L.P.)
Stockholders Meeting. 5.5(a) The Company, acting through the Company Board, shall take all actions In accordance with applicable Law and its certificate of incorporation and bylaws and unless this Agreement has been terminated in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration StatementARTICLE VIII, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Shares (including any adjournments or postponements thereof, the “Stockholders Meeting”) solely for the purpose of considering and taking action upon this Agreement and use its reasonable best efforts to cause such Stockholders Meeting to occur as promptly as practicable after the date the Proxy Statement is cleared by the SEC to obtain the Requisite Stockholder Vote, regardless of whether the Company Common StockBoard determines at any time that this Agreement or the Merger is no longer advisable. Unless this Agreement has been terminated in accordance with ARTICLE VIII, as required by this Sectiononce the Stockholders Meeting has been called and noticed, the Company shall not postpone or adjourn the Stockholders Meeting without the consent of Parent, which shall not be affected unreasonably withheld or delayed (other than (i) for the absence of a quorum or (ii) to the extent required by applicable Law; provided that in the withdrawalevent that the Stockholders Meeting is delayed to a date after the End Date as a result of either (i) or (ii) above, amendment or modification of then the recommendation by End Date shall be extended to the tenth (10th) business day after such date). Subject to Section 6.2, the Company Board or committee thereof shall recommend such adoption and (ii) shall include the Company agrees that its obligations pursuant to this Section shall not be affected by the commencementRecommendation and, public proposal, public disclosure or communication subject to the consent of the Company’s financial advisors, the written opinions of the financial advisors, dated as of the date of this Agreement, that, as of such date, the Per Share Merger Consideration is fair, from a financial point of view, to the Company’s stockholders in the Proxy Statement and shall use its reasonable best efforts to solicit such adoption of this Agreement and the Merger and take all other action reasonably necessary or advisable to secure the vote or consent of stockholders required by applicable Law to effect the Merger. The Company of any Acquisition Proposalshall keep Parent updated with respect to proxy solicitation results to the extent reasonably requested by Parent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ust Inc), Agreement and Plan of Merger (Altria Group, Inc.)
Stockholders Meeting. 5.5(a(a) The CompanySubject to any termination of this Agreement pursuant to Article VIII, acting through the Company Board, shall take all actions in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after practicable following the declaration of effectiveness of the Form S-4 Registration StatementAgreement Date, the Company Shareholders’ Meeting shall prepare and file with the Securities and Exchange Commission (the “SEC”) a preliminary proxy or information statement for the purpose of considering Special Meeting (together with any amendments thereof or supplements thereto and voting upon 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 Voting Proposalshall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. Subject to Section 5.1(b5.3(c), to the fullest extent permitted by applicable Legal Requirements, (i) Company shall include in the Proxy Statement the recommendation of the Company Board shall recommend 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 their reasonable efforts to obtain and furnish the information required to be included by the shareholders SEC in the Proxy Statement and 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 and 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 it shall have become false or misleading in any material respect or as otherwise required by applicable law and, the Company further agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Company Proxy Statement as provided in Section 1.6(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the Securities Exchange Act of 1934, as amended (the “Company Voting ProposalExchange Act”) and include such recommendation in or the Joint Proxy Statement/Prospectus, SEC (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use or its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposalstaff).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Covad Communications Group Inc)
Stockholders Meeting. 5.5(a) The CompanyCompany shall, acting through the Company Board, shall take all actions in accordance with Legal Requirementsthe laws of the State of Delaware, its certificate of incorporation and its bylaws, as each may be amended, use its commercially reasonable best efforts to convene a meeting of holders of the Organizational Documents of Common Stock (the “Stockholders’ Meeting”) within thirty (30) days (or such other time period that is mutually agreed to by the Company and the rules a Majority in Interest of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days Investors) after the declaration of effectiveness date of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Proxy Statement (as defined in Section 5.1(b8.2), to the fullest extent permitted by applicable Legal Requirements, (i) the Company consider and vote upon giving Stockholder Approval. The Board of Directors shall recommend adoption of this Agreement such approval by the shareholders of the Company stockholders (the “Company Voting ProposalRecommendation”) and include shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Investors such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary Required Stockholder Approval or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) take any action or make any statement in connection with the Stockholders’ Meeting inconsistent with such recommendation in favor of the Required Stockholder Approval (collectively, a “Change in the Company agrees Recommendation”); provided, however, that its obligations the Board of Directors may make a Change in the Company Recommendation pursuant to this Section 8.7 hereof and to effect any action permitted by Section 9 hereof. Notwithstanding any Change in the Company Recommendation, the Company shall not nonetheless cause the Stockholders’ Meeting to be affected by the commencementconvened and a vote to be taken, public proposal, public disclosure or communication and nothing contained herein shall be deemed to relieve the Company of any Acquisition Proposalsuch obligation unless this Agreement is terminated pursuant to Section 9.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Rigel Pharmaceuticals Inc)
Stockholders Meeting. 5.5(a) The Company shall call, hold and convene a meeting of its stockholders to consider the approval and adoption of this Agreement, to be held as promptly as practicable after the mailing of the Proxy Statement to the Company, acting through the Company Board, shall take all actions in accordance with Legal Requirements, the Organizational Documents ’s stockholders. The Board of Directors of the Company and shall recommend that the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness stockholders of the Form S-4 Registration Statement, Company vote in favor of the Company Shareholders’ Meeting for the purpose of considering approval and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by at the shareholders Company’s stockholders’ meeting and the Proxy Statement shall include a statement to the effect that the Board of Directors of the Company (has recommended that the “Company Voting Proposal”) Company’s stockholders vote in favor of approval and include such recommendation in adoption of this Agreement at the Joint Proxy Statement/Prospectus, (ii) neither Company’s stockholders’ meeting except to the Company extent that the Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) of Directors of the Company shall use have withdrawn or modified its reasonable best efforts to solicit from its shareholders proxies in favor approval or recommendation of this Agreement or the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder VoteMerger as permitted by Section 4.2(c). Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to this Section the preceding sentence shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposal. Notwithstanding the foregoing, if this Agreement is terminated in accordance with Section 7.1(d) and the Company has complied with Section 7.3(b), the Company shall not be required to call, convene or hold a stockholders’ meeting (and may cancel any scheduled stockholders’ meeting) to consider the adoption of this Agreement or otherwise comply with the provisions of this Section 5.3.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Spinnaker Exploration Co)
Stockholders Meeting. 5.5(a) The Company, acting through the Company Board, shall take all actions action in accordance with Legal Requirementsthe United States federal securities laws, the Organizational Documents of the Company Delaware General Corporate Law and the rules Company's Certificate of The American Stock Exchange to promptly Incorporation and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action By-laws necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a special meeting of the holders Company Stockholders (the "SPECIAL MEETING") to be held on the earliest practicable date determined in consultation with Buyer to consider and vote upon approval of this Agreement. Company Common Stockshall, except as required provided in this Section 5(c)(ii), through the Board of Directors of Company, recommend to the Company Stockholders approval of this Agreement and include such recommendation in the Definitive Proxy Statement, and, except as expressly permitted by this SectionAgreement, shall not withdraw, amend or modify in a manner adverse to Buyer its recommendation. However, the Board of Directors of Company shall be affected by the withdrawal, amendment or modification of the recommendation by permitted to (i) not recommend to the Company Board Stockholders that they approve the Agreement or committee thereof and (ii) withdraw, modify or change the recommendation of Company's Board in a manner adverse to Buyer, and, in such event, not solicit votes in favor of such approval, if the Board of Directors of Company agrees believes in good faith, after consultation with outside legal counsel, that the failure to so withhold, withdraw or modify its obligations pursuant recommendation would reasonably be expected to cause a failure to comply with its fiduciary duties under applicable laws. Unless and until this Section Agreement is terminated, Company shall not be affected by ensure that the commencementSpecial Meeting is called, public proposalnoticed, public disclosure or communication to convened, held and conducted, and that all proxies solicited in connection with the Company of any Acquisition ProposalSpecial Meeting are solicited, in compliance in all material respects with all applicable laws.
Appears in 1 contract
Samples: Merger Agreement (Tab Products Co)
Stockholders Meeting. 5.5(a) The CompanySubject to Section 5.4, acting through the Company Board, shall take all actions action necessary in accordance with Legal Requirements, the Organizational Documents DGCL and its certificate of the Company incorporation and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation bylaws to duly call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable after the holders of Company Common Stock, as required by this Section, shall not be affected Proxy Statement is cleared by the withdrawalSEC for mailing to the Company’s shareholders, amendment subject to compliance with the DGCL and the Exchange Act, for the purpose of obtaining the Company Stockholder Approvals (the “Company Meeting”); provided that the Company may postpone or modification adjourn the Company Meeting (i) with the consent of the recommendation Parent Parties, (ii) for the absence of a quorum, (iii) to allow reasonable additional time for any supplemental or amended disclosure which the Company has determined in good faith (after consultation with outside counsel) is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Meeting or (iv) to allow additional solicitation of votes in order to obtain the Company Stockholder Approvals. The Company shall, through the Company Board and the Special Committee, but subject to the right of the Company Board or committee thereof the Special Committee to make a Change of Recommendation pursuant to Section 5.3, provide the Recommendation and (ii) shall include the Recommendation in the Proxy Statement, and, unless there has been a Change of Recommendation pursuant to Section 5.3, the Company agrees that its obligations pursuant shall use commercially reasonable efforts to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to solicit proxies in favor of the Company Stockholder Approvals. The Parent Parties and their Representatives shall have the right to solicit proxies in favor of any Acquisition Proposalthe Company Stockholder Approvals.
Appears in 1 contract
Stockholders Meeting. 5.5(a) The CompanyCompany shall, acting through the Company Board, shall take all actions in accordance with Legal Requirements, the Organizational Documents laws of the Company State of Delaware, its certificate of incorporation and the rules of The American Stock Exchange to promptly and duly callits bylaws, give notice ofas each may be amended, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its commercially reasonable best efforts to solicit from its shareholders proxies convene a meeting of holders of the Common Stock (the "STOCKHOLDERS' MEETING") within thirty (30) days (or such other time period that is mutually agreed to by the Company and a Majority in Interest of Investors) after the date of the Proxy Statement (as defined in Section 8.2), to consider and vote upon giving Stockholder Approval. The Board of Directors shall recommend such approval by the stockholders (the "COMPANY RECOMMENDATION") and shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Investors such recommendation in favor of the Company Voting Proposal and shall take all other action necessary Required Stockholder Approval or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) take any action or make any statement in connection with the Stockholders' Meeting inconsistent with such recommendation in favor of the Required Stockholder Approval (collectively, a "CHANGE IN THE COMPANY RECOMMENDATION"); provided, however, that the Board of Directors may make a Change in the Company agrees that its obligations Recommendation pursuant to this Section 8.7 hereof and to effect any action permitted by Section 9 hereof. Notwithstanding any Change in the Company Recommendation, the Company shall not nonetheless cause the Stockholders' Meeting to be affected by the commencementconvened and a vote to be taken, public proposal, public disclosure or communication and nothing contained herein shall be deemed to relieve the Company of any Acquisition Proposalsuch obligation unless this Agreement is terminated pursuant to Section 9.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Frazier Healthcare Ii Lp)
Stockholders Meeting. 5.5(a) The Company, acting through the Company Board, Citizens shall take all actions in accordance with Legal Requirements, the Organizational Documents cause a meeting of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting its stockholders for the purpose of considering and voting acting upon this Agreement to be held at the Company Voting Proposalearliest practicable date after the Registration Statement (as defined below) has been declared effective by the SEC. Subject Citizens shall send to Section 5.1(b)its stockholders, at least thirty (30) days prior to such meeting, notice of such meeting together with the fullest extent permitted by applicable Legal RequirementsProxy Statement, (i) the Company Board which shall recommend adoption include a copy of this Agreement by the shareholders and a copy of Section 262 of the Company (DGCL governing the “Company Voting Proposal”) rights of dissenting stockholders. Citizens and include its board of directors shall recommend to stockholders the approval of this Agreement and the Merger and shall solicit proxies voting only in favor thereof from the Citizens Stockholders, and Citizens and its board of directors shall not withdraw, modify or change, in any manner adverse to MSTI, or publicly announce its intent to withdraw, modify or change, in any manner adverse to MSTI, such recommendation in of this Agreement and the Joint Proxy Statement/ProspectusMerger; provided, (ii) neither however, that Citizens shall not be required to make the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as recommendation required by this SectionSECTION 6.11, and shall not be affected permitted to withdraw, modify or change such recommendation, if the board of directors of Citizens determines, in good faith, that the exercise of its fiduciary duties to Citizens' stockholders under applicable law, as advised by its counsel, so requires. For the withdrawalavoidance of doubt, amendment or modification the parties acknowledge that the failure of Citizens to comply with the recommendation by the Company Board or committee thereof provisions of this SECTION 6.11 shall be deemed to have a Material Adverse Effect on Citizens on a consolidated basis and (ii) the Company agrees that its obligations pursuant to on MSTI's rights under this Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition ProposalAgreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Citizens First Financial Corp)
Stockholders Meeting. 5.5(a) The As soon as reasonably practicable following the date of this Agreement, the Company, acting through the Company Boardits Board of Directors, shall (a) take all actions in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of its stockholders for the purpose of adopting this Agreement (the “Stockholders Meeting”), (b) include in the Proxy Statement (i) that the Board of Directors of the Company has determined that the Merger is in the best interests of the Company and the stockholders of the Company, and declared advisable this Agreement and the transactions contemplated by this Agreement (including the Merger), (ii) that the Board of Directors of the Company has approved this Agreement in accordance with the DGCL, (iii) that the Board of Directors of the Company recommends the adoption of this Agreement by the stockholders of the Company (such recommendation described in this clause (iii), the “Recommendation”) (except to the extent that the Company has effected a Change of Recommendation in accordance with this Section 6.1) and (iv) subject to the consent of each of the Financial Advisors, as applicable, the written opinions of the Financial Advisors, dated as of the date of this Agreement, that, as of such date, the Merger Consideration is fair, from a financial point of view, to the holders of the Company Common StockStock and (c) use its reasonable best efforts to obtain the Company Requisite Votes (except to the extent that the Company has effected a Change of Recommendation in accordance with this Section 6.1). The Company will use reasonable best efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and will take all other action reasonably necessary or advisable to secure the Company Requisite Votes (except to the extent that the Company has effected a Change of Recommendation in accordance with this Section 6.1). The Company shall keep Holdings and Merger Sub updated with respect to proxy solicitation results as reasonably requested by Holdings or Merger Sub. Neither the Board of Directors of the Company nor any committee thereof shall, directly or indirectly, withdraw (or modify or qualify in a manner adverse to Holdings or Merger Sub), or publicly propose to withdraw (or modify or qualify in a manner adverse to Holdings or Merger Sub), the Recommendation (any such action being referred to as required a “Change of Recommendation”); it being understood that any “stop, look and listen” or similar communication of the type contemplated by this Section, Rule 14d-9(f) of the Exchange Act shall not be affected by deemed to be a Change of Recommendation); provided, that at any time prior to obtaining the withdrawalCompany Requisite Votes, amendment or modification the Board of Directors of the recommendation by Company may effect a Change of Recommendation if (i) the Company Board or committee thereof of Directors shall have determined in good faith, after consultation with its outside legal counsel, that such action is necessary in order for the Board of Directors to act in a manner consistent with its fiduciary duties under applicable law, and (ii) the Company agrees that its obligations pursuant has provided Holdings with at least three business days' prior written notice of such Change of Recommendation. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is terminated in accordance with Section 8.1, the obligation of the Company to call, give notice of, convene and hold the Stockholders Meeting as promptly as practicable after the date of this Agreement shall not be limited or otherwise affected by the commencement, public proposaldisclosure, public disclosure announcement or communication submission to the Company it of any Acquisition ProposalProposal or by a Change of Recommendation.
Appears in 1 contract
Stockholders Meeting. 5.5(a(a) The Company, acting through the Company Boardits Board of Directors, shall take all actions shall, if required in accordance with Legal Requirements, the Organizational Documents of the Company applicable law and the rules Company's Certificate of The American Stock Exchange to promptly Incorporation and duly call, give notice of, convene and hold as promptly as practicable, By-Laws and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirementsconsultation with Holdings, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of its stockholders as soon as practicable following the holders purchase of Company Common Stock, as required by Shares pursuant to the Offer for the purpose of adopting this Section, shall not be affected by Agreement (the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof "Stockholders Meeting") and (ii) (A) except to the extent modified in accordance with this Section 6.2, include in the Proxy Statement the unanimous recommendation of the Board of Directors that the stockholders of the Company agrees vote in favor of the adoption of this Agreement and include the written opinions of the Financial Advisors that the consideration to be received by the stockholders of the Company (other than Holdings and its obligations affiliates) pursuant to this Section the Offer and the Merger is fair to such stockholders from a financial point of view and (B) use its reasonable best efforts to obtain the Requisite Stockholder Approval. The Board of Directors of the Company shall not withdraw, amend or modify in a manner adverse to Holdings or the Purchaser such recommendation (or announce publicly its intention to do so) provided that the Board of Directors shall be affected permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) in a manner adverse to Holdings or the Purchaser if: (1) the Company has complied with Section 6.10, (2) a Superior Proposal (as defined in Section 6.10) shall have been proposed by any person other than Holdings or the commencementPurchaser and such proposal is pending at the time of such action; (3) the Board of Directors shall have concluded in good faith, public proposalafter consultation with its outside legal counsel, public disclosure that the Board of Directors is required to withdraw, amend or communication modify such recommendation in order to comply with its fiduciary duties to the stockholders of the Company under applicable law; and (4) the Company shall have notified Holdings of any Acquisition Proposal.such Superior Proposal at least two business days in advance of such action. At the Stockholders Meeting, Parent and Purchaser shall cause all Shares then beneficially owned by them and their subsidiaries to be voted in favor of the adoption of this Agreement. (b) Notwithstanding the foregoing, in the event that Purchaser shall acquire at least 90% of the outstanding Shares, the Company and Holdings agree, subject to Article VII, to take all necessary and appropriate action to cause the Merger to become effective as soon as reasonably practicable after such acquisition, without a meeting of the Company's stockholders, in accordance with Section 253 of the DGCL. 00 00 6.3
Appears in 1 contract
Samples: Execution Copy Agreement and Plan of Merger (Vestar Sheridan Inc)
Stockholders Meeting. 5.5(a) The Company, acting through the Company Boardits board of directors, shall take all actions take, in accordance with Legal Requirementsapplicable Law and its certificate of incorporation and bylaws, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its all reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Shares (the ”Stockholders Meeting”) as promptly as reasonably practicable after the execution of this Agreement to consider and vote upon the approval of this Agreement. The written consent of Merger Sub will be required to adjourn or postpone the Stockholders Meeting; provided, that, in the event that there is present at such meeting, in person or by proxy, sufficient favorable voting power to secure the Requisite Company Common StockVote, the Company will not adjourn or postpone the Stockholders Meeting unless the Company is advised by counsel that failure to do so would result in a breach of the U.S. federal securities laws or fiduciary duties of the Board of Directors. Subject to Section 6.2 hereof, the board of directors of the Company shall recommend such approval and shall take all reasonable lawful action to solicit such approval of this Agreement. Notwithstanding anything herein to the contrary, unless this Agreement is terminated in accordance with ARTICLE VIII, the Company will take all of the actions contemplated by this Section 6.5 regardless of a Change of Recommendation, and will submit this Agreement for adoption by the stockholders of the Company at such meeting. The Company shall keep Parent updated with respect to the proxy solicitation results as reasonably required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition ProposalParent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Bristol West Holdings Inc)
Stockholders Meeting. 5.5(a) The Subject to the duties of the Company’s board of directors under applicable Laws, acting through the Company Boardwill take, shall take all actions in accordance with Legal Requirementsapplicable Laws and its charter and bylaws, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its all reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, shall not be affected by Shares (the withdrawal, amendment or modification “Stockholders Meeting”) promptly after the filing of the recommendation by definitive Proxy Statement with the SEC to consider and vote upon the approval of the Merger pursuant to this Agreement. Subject to Section 6.2 hereof, the Company Board or committee thereof and shall (i) take all reasonable lawful action to solicit such approval of the Merger pursuant to this Agreement, (ii) make the Company agrees that Recommendation in the Proxy Statement and (iii) at the reasonable request of Parent, use customary and commercially reasonable efforts to solicit from its obligations stockholders proxies in favor of the approval of the Merger pursuant to this Section Agreement, provided that if the board of directors of the Company or a committee thereof determines in good faith, after consultation with outside counsel, that any of the foregoing actions would be inconsistent with their duties under applicable Laws, the Company shall not to be affected required to take any such action and/or the board of directors of the Company may withhold, withdraw, qualify, modify or change in a manner adverse to Parent all or any portion of the Company Recommendation. The Company shall keep Parent updated with respect to proxy solicitation results as reasonably requested by the commencementParent. Unless and until this Agreement is terminated in accordance with it terms, public proposal, public disclosure or communication subject to the provisions of this Agreement (including Section 6.2), the Company shall not submit to the vote of its stockholders any Acquisition ProposalProposal other than the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Life Sciences Research Inc)
Stockholders Meeting. 5.5(a) The Subject to the duties of each of the Company’s directors under applicable Law, the Company, acting through the Company BoardBoard (or a committee thereof), shall shall, as promptly as practicable following confirmation by the SEC that the SEC has no further comments on the Proxy Statement, take all actions in accordance with Legal Requirements, action required under the Organizational MGCL and its Constituent Documents and the applicable requirements of the Company and the rules of The American Stock Exchange NYSE necessary to promptly and duly call, give notice of, convene and hold as promptly as practicablepracticable the Stockholders Meeting; provided, and that the Company may postpone or adjourn such meeting solely (a) to the extent required by applicable Law, (b) with the written consent of Parent, (c) to allow reasonable additional time to solicit additional proxies to the extent the Company reasonably believes necessary in any order to obtain the Requisite Company Vote or (d) in the absence of a quorum; provided, that in the case of clause (c) or (d), without the written consent of Parent, in no event within 45 shall the Stockholders Meeting (as so postponed or adjourned) be held on a date that is more than thirty (30) days after the declaration of effectiveness of date for which the Form S-4 Registration Statement, the Company Shareholders’ Stockholders Meeting for the purpose of considering and voting upon the Company Voting Proposalwas originally scheduled. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) Unless the Company Board or any committee thereof has withdrawn the Company Recommendation in compliance with Section 6.01, the Company, through the Company Board, shall recommend adoption of this Agreement by the shareholders to holders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies Shares that they vote in favor of the Company Voting Proposal Merger and the Company shall take all other action necessary or advisable use commercially reasonable efforts to secure solicit the Required Requisite Company Shareholder VoteVote (including by soliciting proxies from the Company’s stockholders). Without limiting the generality of the foregoingThe Company shall keep Parent reasonably informed with respect to proxy solicitation results as reasonably requested by Parent. Unless this Agreement is terminated in accordance with ARTICLE VIII, (ix) the Company agrees that shall not submit to the vote of its stockholders any Acquisition Proposal and (y) the obligation of the Company to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as Stockholders Meeting and mail the Proxy Statement (and any amendment or supplement thereto that may be required by this Section, Law) to the Company’s stockholders shall not be affected by the withdrawal, amendment or modification a Change of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition ProposalRecommendation.
Appears in 1 contract
Samples: Agreement and Plan of Merger (NorthStar Realty Europe Corp.)
Stockholders Meeting. 5.5(a) The CompanyCompany will, acting through the Company Board, shall take all actions in accordance with Legal Requirements, the Organizational Documents of applicable law and the Company Certificate of Incorporation and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to Bylaws duly call, give notice of, convene and hold a special meeting (which, as may be duly adjourned, the "Company Special Meeting") of its stockholders for the purpose of approving and adopting the agreement of merger (as such term is used in Section 251 of the DGCL) set forth in this Agreement and approving the Merger, in each case by the holders of a majority of the voting power of the outstanding shares of Company Common Stock (with the holders of Company Ordinary Common StockStock and the holders of Company Class B Common Stock voting together as a single class) (the "Company Stockholder Approval"). Company will use its reasonable efforts to cause the Company Special Meeting to occur within seventy five (75) days after the date on which the Registration Statement becomes effective, as required but not earlier than twenty (20) business days after the date the Proxy Statement is first mailed to stockholders. Company will include in the Proxy Statement the recommendation of its Board of Directors ("Company Board Recommendation") that its stockholders vote in favor of the Company Stockholder Approval, subject to the right to withdraw, modify or change such recommendation in accordance with Section 5.10 of this Agreement. If, after the Initial Period, the Board of Directors of Company withdraws, modifies or changes its recommendation of this Agreement or the Merger in a manner adverse to Parent or resolves to do any of the foregoing, Company will nevertheless remain obligated to call, give notice of, convene and hold the Company Special Meeting within the time period specified above. Company will (a) cause its transfer agent to make stock transfer records relating to Company available to the extent reasonably necessary to effectuate the intent of this Agreement, and (b) otherwise render reasonable assistance to Parent in the solicitation of proxies by Parent in favor of approval of this SectionAgreement and the Merger; provided, shall however, Company will not be affected obligated to take the actions under clause (b) if Company has taken any of the actions contemplated by the withdrawal, amendment or modification second sentence of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposal5.10(d).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Clear Channel Communications Inc)
Stockholders Meeting. 5.5(aThe Company shall (a) The Companyas soon as reasonably practicable following the date of this Agreement, acting through the Company Board, shall take all actions in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Company Requisite Vote (the “Stockholders Meeting”), (b) subject to Section 6.5, include in the Proxy Statement the recommendation of the Board that the stockholders of the Company vote in favor of the adoption of this Agreement (the “Recommendation”) and (c) subject to Section 6.5, use its reasonable best efforts to obtain the Company Requisite Vote (including using reasonable best efforts to solicit proxies from the Company’s stockholders). The Company shall keep Parent updated with respect to proxy solicitation results as reasonably requested by Parent. The Company will convene and hold the Stockholders Meeting no later than the thirtieth (30th) day following the mailing of the Proxy Statement to the stockholders. Notwithstanding anything to the contrary in this Agreement, nothing will prevent the Company from postponing or adjourning the Stockholders Meeting if (i) there are holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification an insufficient number of the recommendation Common Shares and Preferred Shares present or represented by proxy at the Company Board or committee thereof and Stockholders Meeting to constitute a quorum at the Stockholders Meeting, (ii) the Company is required to postpone or adjourn the Stockholders Meeting by applicable Law, order or a request from the SEC or the NZX, or (iii) the Board shall have determined in good faith, after consultation with outside legal counsel to the Company, that such action is necessary to ensure that any supplement or amendment to the Proxy Statement required by Law is provided to the Company’s stockholders in advance of a vote on the Merger and this Agreement. The Company agrees that that, unless this Agreement has been terminated in accordance with Section 8.1, its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposal.this
Appears in 1 contract
Samples: Voting Agreement (Diligent Corp)
Stockholders Meeting. 5.5(a) The Company, acting through the Company Board, shall take all actions Unless this Agreement has been terminated in accordance with Legal Requirementsits terms, and subject to fiduciary obligations under applicable Law, the Organizational Documents Company will take, in accordance with applicable Law, its certificate of the Company incorporation and bylaws and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness regulations of the Form S-4 Registration StatementSEC and NASDAQ, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its all reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common StockShares (the “Stockholders Meeting”), which Stockholders Meeting shall be held as required by promptly as reasonably practicable after the date the Proxy Statement is mailed to the holders of Common Shares, to consider and vote upon the adoption of this SectionAgreement; provided, shall not be affected by however, for the withdrawalavoidance of doubt, amendment or modification of the recommendation by the Company Board may postpone or committee thereof and adjourn the Stockholders Meeting: (i) with the consent of Parent in its sole discretion; (ii) for the absence of a quorum; (iii) to the extent necessary to ensure that any supplement or amendment to the Proxy Statement required under applicable Law is provided to the holders of Common Shares within a reasonable period of time in advance of the Stockholders Meeting; (iv) to allow reasonable additional time to solicit additional proxies; (v) to the extent required by Law; (vi) if the Company agrees that its obligations has provided a written notice to Parent pursuant to Section 4.2(c)(iii) that it intends to make a Change of Recommendation in connection with a Superior Proposal and the notice period contemplated by Section 4.2(c)(iii) has not yet expired; or (vii) if the Company has provided a written notice to Parent pursuant to Section 4.2(c)(iv) that it intends to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal and the notice period contemplated by Section 4.2(c)(iv) has not yet expired. Subject to a Change of Recommendation pursuant to Section 4.2, the Board of Directors of the Company shall recommend the adoption of this Section shall not be affected Agreement by the commencementholders of Common Shares, public proposal, public disclosure or communication shall include such recommendation in the Proxy Statement and shall take all reasonable lawful action to solicit such adoption of this Agreement by the Company holders of any Acquisition ProposalCommon Shares.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Integramed America Inc)
Stockholders Meeting. 5.5(a) The Company, acting through the Company Boardits Board of Directors, shall (a) as soon as reasonably practicable following the date of this Agreement, take all actions in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of its stockholders for the holders purpose of Company Common Stockapproving and adopting this Agreement (the “Stockholders Meeting”), as required by this Section, shall not be affected by (b) include in the withdrawal, amendment or modification Proxy Statement the recommendation of the recommendation by Board of Directors that the stockholders of the Company vote in favor of the adoption of this Agreement (the “Recommendation”) and (c) use its reasonable best efforts to obtain the Company Requisite Vote; provided that with respect to the foregoing clauses (b) and (c) the Board of Directors of the Company may fail to make or committee thereof may withdraw, modify or change the Recommendation and/or may fail to use such efforts if (i) it shall have determined in good faith, after consultation with outside legal counsel to the Company, that such action is required in order for the Board of Directors of the Company to act in a manner consistent with its fiduciary duties under applicable law and (ii) it notifies Parent in writing of its intention to take such action at least three (3) business days prior to taking such action, specifying in reasonable detail the reasons therefor (which notice shall include, if such action is taken in connection with a Superior Proposal, the notice required by Section 6.5(e)). Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is terminated in accordance with Section 8.1(d)(iii) (and subject to compliance with Section 6.5(e)), the Company, regardless of whether the Board of Directors of the Company agrees that its obligations pursuant to has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Recommendation, but in compliance with the DGCL, will call, give notice of, convene and hold the Stockholders Meeting as soon as reasonably practicable after the date of this Section shall not be affected Agreement and will submit this Agreement for adoption by the commencement, public proposal, public disclosure or communication to stockholders of the Company of any Acquisition Proposalat the Stockholders Meeting.
Appears in 1 contract
Samples: Agreement and Plan of Merger (United Rentals Inc /De)
Stockholders Meeting. 5.5(a) The CompanyCompany shall, acting through the Company Board, shall take all actions in accordance with Legal Requirements, the Organizational Documents laws of the Company State of Delaware, its certificate of incorporation and the rules of The American Stock Exchange to promptly and duly callits bylaws, give notice ofas each may be amended, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its commercially reasonable best efforts to solicit from its shareholders proxies convene a meeting of holders of the Common Stock (the "STOCKHOLDERS' MEETING") within thirty (30) days (or such other time period that is mutually agreed to by the Company and a Majority in Interest of Investors) after the date of the Proxy Statement (as defined in Section 8.2), to consider and vote upon giving Stockholder Approval. The Board of Directors shall recommend such approval by the stockholders (the "COMPANY Recommendation") and shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Investors such recommendation in favor of the Company Voting Proposal and shall take all other action necessary Required Stockholder Approval or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) take any action or make any statement in connection with the Stockholders' Meeting inconsistent with such recommendation in favor of the Required Stockholder Approval (collectively, a "CHANGE IN THE COMPANY RECOMMENDATION"); provided, however, that the Board of Directors may make a Change in the Company agrees that its obligations Recommendation pursuant to this Section 8.7 hereof and to effect any action permitted by Section 9 hereof. Notwithstanding any Change in the Company Recommendation, the Company shall not nonetheless cause the Stockholders' Meeting to be affected by the commencementconvened and a vote to be taken, public proposal, public disclosure or communication and nothing contained herein shall be deemed to relieve the Company of any Acquisition Proposalsuch obligation unless this Agreement is terminated pursuant to Section 9.
Appears in 1 contract
Samples: Warrant Purchase Agreement (MPM Bio Ventures Iii Lp)
Stockholders Meeting. 5.5(a) The CompanyCompany shall, acting through the Company Board, shall take all actions in accordance with Legal Requirementsthe laws of the State of Delaware and the Company's certificate of incorporation, certificates of designation, and bylaws, as each may be amended, use its best efforts to convene a meeting of holders of Common Stock (the Organizational Documents of "Stockholders' Meeting") within 30 days (or such other time period that is mutually agreed to by the Company and the rules Investors) after the date of the Proxy Statement, to consider and vote upon giving Stockholder Approval. The American Stock Exchange board of directors of the Company shall recommend such approval by the stockholders (the "Company Recommendation") and shall not (i) withdraw, modify or qualify (or propose to promptly and duly callwithdraw, give notice of, convene and hold as promptly as practicable, and modify or qualify) in any event within 45 days after manner adverse to Investors such recommendation or (ii) take any action or make any statement in connection with the declaration Stockholders' Meeting inconsistent with such recommendation (collectively, a "Change in the Company Recommendation"); provided, however, that the board of effectiveness directors of the Form S-4 Registration StatementCompany may make a Change in the Company Recommendation pursuant to Section 7.14 hereof and to effect any action permitted by Section 8.1 hereof. Notwithstanding any Change in the Company Recommendation, the Company Shareholders’ shall nonetheless cause the Stockholders' Meeting for the purpose of considering to be convened and voting upon the Company Voting Proposal. Subject a vote to Section 5.1(b)be taken, and nothing contained herein shall be deemed to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to relieve the Company of any Acquisition Proposalsuch obligation unless this Agreement is terminated pursuant to Section 8.1.
Appears in 1 contract
Samples: Solicitation Agreement (Ribozyme Pharmaceuticals Inc)
Stockholders Meeting. 5.5(a) The CompanySubject to Section 8.3(b), acting through the Company Boardwill -------------------- take, shall take all actions in accordance with Legal Requirementsapplicable Law and its certificate of incorporation and bylaws, all action necessary to convene a meeting of holders of Company Shares (the Organizational Documents "Stockholders Meeting") -------------------- as promptly as practicable after the S-4 Registration Statement is declared effective to consider and vote upon the adoption of this Agreement. The Company's Board of Directors shall (i) recommend that the stockholders of the Company adopt this Agreement and thereby approve the rules transactions contemplated by this Agreement and (ii) take all lawful action (including the solicitation of The American Stock Exchange proxies) to promptly and duly callsolicit such adoption; provided, give notice ofhowever, convene and hold as promptly as practicablethat the Company's Board --------- ------- of Directors may, and at any time prior to the Effective Time, withdraw, modify or change any such recommendation to the extent that the Company's Board of Directors determines in any event within 45 days good faith, after consultation with outside legal counsel, that such withdrawal, modification or change of its recommendation is required by its fiduciary duties to the declaration of effectiveness of the Form S-4 Registration StatementCompany's stockholders under applicable Law; provided, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject further, that, subject to Section 5.1(b8.3(b), regardless of whether -------- ------- the Company's Board of Directors has withdrawn, modified or changed its recommendation to the fullest extent permitted by applicable Legal Requirements, (i) stockholders regarding the Company Board shall recommend adoption of this Agreement by or the shareholders approval of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectustransactions contemplated by this Agreement, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor as promptly as practicable after the S-4 Registration Statement is declared effective duly convene and complete the Stockholders Meeting and cause a vote of the Company Voting Proposal stockholders to be taken at such Stockholders Meeting regarding the adoption of this Agreement and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality approval of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required transactions contemplated by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition ProposalAgreement.
Appears in 1 contract
Samples: Stockholder Agreement (Alza Corp)
Stockholders Meeting. 5.5(a) The CompanyCompany shall, acting through the Company Board, shall take all actions in accordance with Legal Requirements, the Organizational Documents laws of the Company State of Delaware, its certificate of incorporation and the rules of The American Stock Exchange to promptly and duly callits bylaws, give notice ofas each may be amended, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its commercially reasonable best efforts to solicit from its shareholders proxies convene a meeting of holders of the Common Stock (the "Stockholders' Meeting") within thirty (30) days (or such other time period that is mutually agreed to by the Company and a Majority in Interest of Investors) after the date of the Proxy Statement (as defined in Section 8.2), to consider and vote upon giving Stockholder Approval. The Board of Directors shall recommend such approval by the stockholders (the "Company Recommendation") and shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Investors such recommendation in favor of the Company Voting Proposal and shall take all other action necessary Required Stockholder Approval or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) take any action or make any statement in connection with the Stockholders' Meeting inconsistent with such recommendation in favor of the Required Stockholder Approval (collectively, a "Change in the Company agrees Recommendation"); provided, however, that its obligations the Board of Directors may make a Change in the Company Recommendation pursuant to this Section 8.7 hereof and to effect any action permitted by Section 9 hereof. Notwithstanding any Change in the Company Recommendation, the Company shall not nonetheless cause the Stockholders' Meeting to be affected by the commencementconvened and a vote to be taken, public proposal, public disclosure or communication and nothing contained herein shall be deemed to relieve the Company of any Acquisition Proposalsuch obligation unless this Agreement is terminated pursuant to Section 9.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Alta Partners)
Stockholders Meeting. 5.5(a) The As soon as reasonably practicable following the date of this Agreement, the Company, acting through the Company Boardits Board of Directors, shall take all actions in accordance with Legal Requirements, the Organizational Documents of the Company and the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of its stockholders for the purpose of adopting this Agreement (the "Stockholders Meeting"), (ii) include in the Proxy Statement the recommendation of the Board of Directors that the stockholders of the Company vote in favor of the adoption of this Agreement and, subject to the approval of each Financial Advisor, as applicable, the written opinions of the Financial Advisors, dated as of the date hereof, that, as of such date, the Merger Consideration is fair, from a financial point of view, to the holders of the Class A Common Stock and Class B Common Stock (other than members of the Xxxxx Family Group) and (iii) use its reasonable best efforts to obtain the Company Common StockRequisite Vote; provided that the Board of Directors of the Company may fail to make or withdraw, as modify or change such recommendation and/or may fail to use such efforts (subject to the Company having (A) provided Parent at least three business days' prior written notice of the Company's Board of Directors' intention to do so and (B) complied with its obligations under Section 6.5 in all material respects) if it shall have determined in good faith, after consultation with outside counsel to the Company, that such action is required by in order for the Board of Directors to comply with its fiduciary duties under applicable Law. Notwithstanding anything to the contrary contained in this SectionAgreement, the Company shall not be affected by required to hold the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to Stockholders Meeting if this Agreement is terminated in accordance with Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposal.8.1. SECTION 6.2
Appears in 1 contract
Samples: Agreement and Plan of Merger (Neiman Marcus Group Inc)
Stockholders Meeting. 5.5(aThe Company shall call a meeting of its stockholders to be held as promptly as practicable following the date of this Agreement, but in no event later than ninety (90) The Companydays following the Closing Date, acting through to vote on the following proposals (the “Stockholder Proposals”): (i) to approve an increase in the number of shares of Common Stock that the Company Boardis authorized to issue from one hundred ten million (110,000,000) shares to two hundred fifty million (250,000,000) shares; and (ii) to approve (1) the issuance of Common Stock and Pre-Funded Warrants, shall take all actions as applicable, upon the conversion of the Mandatorily Convertible Preferred Stock, (2) the issuance of the Coverage Warrants upon the conversion of the Mandatorily Convertible Preferred Stock and (3) the issuance of Common Stock upon the exercise of the Pre-Funded Warrants and the Coverage Warrants, in accordance with Legal Requirementseach case for purposes of Rule 5635 of the Nasdaq Stock Market Rules (such approval of the Stockholder Proposals, the Organizational Documents “Stockholder Approval”). The Board of Directors of the Company and shall recommend to the rules of The American Stock Exchange to promptly and duly call, give notice of, convene and hold as promptly as practicable, and Company’s stockholders that such stockholders vote in any event within 45 days after the declaration of effectiveness favor of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Stockholder Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the The Company shall use its reasonable best efforts to obtain such Stockholder Approval. In connection with such meeting, the Company shall promptly prepare and file (but in no event more than twenty (20) days after the Closing Date) with the Commission a preliminary proxy statement, shall use its reasonable best efforts to respond to any comments of the Commission or its staff with respect to the preliminary proxy statement and to cause a definitive proxy statement related to such stockholders’ meeting to be mailed to the Company’s stockholders, and shall solicit proxies from its shareholders in connection therewith in the same manner as all other management proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal. The Company shall provide the Purchaser with a reasonable opportunity to review and provide comments on the preliminary proxy statement and the definitive proxy statement. The Company shall notify Purchaser promptly of the receipt of any comments from the Commission or its staff with respect to the proxy statement and of any request by the Commission or its staff for amendments or supplements to such proxy statement or for additional information (but the Company Voting Proposal shall not provide any Purchaser with any material, non-public information, unless requested by such Purchaser and pursuant to a written agreement regarding the confidentiality and use of such information). If at any time prior to such stockholders’ meeting there shall take all other action necessary occur any event that is required to be set forth in an amendment or advisable supplement to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoingproxy statement, (i) the Company agrees shall as promptly as practicable prepare and mail to its stockholders such an amendment or supplement. In the event that its obligation Stockholder Approval is not obtained at such stockholder meeting, the Company shall include a proposal to duly call, give notice approve (and the Board of Directors shall recommend approval of, convene and hold ) such proposal at a meeting of its stockholders to be held no less than once in each subsequent four-month period beginning on the holders date of Company Common Stock, as required by this Section, shall not be affected by the withdrawal, amendment or modification of the recommendation by the Company Board or committee thereof and (ii) the Company agrees that its obligations pursuant to this Section shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposalsuch stockholder meeting until such approval is obtained.
Appears in 1 contract
Samples: Registration Rights Agreement (Leap Therapeutics, Inc.)
Stockholders Meeting. 5.5(a(a) The Company, acting through the Company Board, shall take all actions shall, in accordance with Legal Requirementsapplicable Law, the Organizational Documents its Articles of the Company Organization and the rules of The American Stock Exchange to promptly and duly callits By-laws, give notice of, convene and hold as promptly as practicable, and in any event within 45 days after the declaration of effectiveness of the Form S-4 Registration Statement, the Company Shareholders’ Meeting for the purpose of considering and voting upon the Company Voting Proposal. Subject to Section 5.1(b), to the fullest extent permitted by applicable Legal Requirements, (i) the Company Board shall recommend adoption of this Agreement by the shareholders of the Company (the “Company Voting Proposal”) and include such recommendation in the Joint Proxy Statement/Prospectus, (ii) neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change and (iii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the Required Company Shareholder Vote. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a special meeting of its stockholders as soon as practicable following the holders execution of Company Common Stockthis Agreement for the purpose of considering and taking action upon this Agreement (the "STOCKHOLDERS' MEETING"). It is agreed that, except as required by fiduciary obligations under applicable Law, the Company and its Board shall not cancel, adjourn or postpone the Stockholders' Meeting without the prior written consent of Parent, provided that the Company may, in its sole discretion, adjourn or postpone the Stockholders' Meeting if the Board determines that additional time is necessary or desirable to solicit and collect additional proxies from stockholders with respect to the Merger. Subject to the exercise of its fiduciary obligations in accordance with the provisions of Section 5.1, the Company's Board shall recommend approval of this SectionAgreement and the Merger, shall not withdraw or modify such recommendation, and shall take all lawful action to solicit such approval. Without limiting the generality of the foregoing: (i) in the event that the Company's Board withdraws or modifies its recommendation, but this Agreement has not been terminated pursuant to Section 7.1(c)(i) or 7.1(d)(i), the Company shall cause the Stockholders' Meeting to be affected by convened and vote taken with respect to the withdrawalMerger, amendment and the Board shall communicate to the Company's stockholders its basis for such withdrawal or modification of the recommendation by the Company Board or committee thereof and (ii) in the event that this Agreement has been terminated pursuant to Section 7.1(c)(i) or 7.1(d)(i), the Company agrees that its obligations pursuant to this Section shall not be affected by obligated to cause the commencement, public proposal, public disclosure or communication Stockholders' Meeting to be convened and vote taken with respect to the Company of any Acquisition ProposalMerger.
Appears in 1 contract
