The Proxy Statement. (a) On or prior to December 31, 2022, the Purchaser shall prepare with the reasonable assistance of the Seller, and file with the SEC a Proxy Statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special Meeting. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, at a special meeting of the Purchaser’s stockholders to be called and held for such purpose (the “Purchaser Special Meeting”), in favor of resolutions approving (i) the adoption and approval of this Agreement, and the transactions contemplated hereby or referred to herein, including the Merger, by the holders of Purchaser Common Stock in accordance with the Purchaser’s Organizational Documents, the DCGL and the rules and regulations of the SEC and Nasdaq and (ii) the approval of the Amended Purchaser Certificate of Incorporation to in part increase the authorized capital stock of the Purchaser; and (iii) such other matters as the Seller and the Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (iii), collectively, the “Purchaser Stockholder Approval Matters”); and (iv) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation rules set forth in the Purchaser’s Organizational Documents and the rules and regulations of the SEC and Nasdaq. The Purchaser shall cooperate and provide the Seller (and its counsel) with sufficient opportunity to review and comment on the Proxy Statement and any amendment or supplement thereto prior to filing the same with the SEC. The Seller shall provide the Purchaser with such information concerning the Target Entities and their stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto. (b) The Purchaser shall use its best efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Exchange Act and other applicable Laws in connection with the Proxy Statement and the Purchaser Special Meeting. Each of the Purchaser and the Seller shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the Seller, the Purchaser and, after the Closing, the Purchaser Representative, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents. (c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effective. The Purchaser shall provide the Seller with copies of any written comments, and shall inform the Seller of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting promptly after the receipt of such comments and shall give the Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments. (d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” of comments on the Proxy Statement. (e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting. (f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f).
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Tingo, Inc.), Agreement and Plan of Merger (MICT, Inc.), Agreement and Plan of Merger (MICT, Inc.)
The Proxy Statement. (ai) On or prior to December 31As soon as practicable after the date hereof, 2022, PVY shall take such reasonable steps as are necessary for the Purchaser shall prepare with the reasonable assistance of the Seller, prompt preparation and file filing with the SEC of a Proxy Statement proxy statement relating to the PVY Meeting (as amendedtogether with any amendments thereto or supplements thereto, the “"Proxy Statement”) for the purpose "). Each of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special Meeting. The Proxy Statement SUG and PVY shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to votefurnish all information concerning it, at a special meeting of the Purchaser’s stockholders to be called its officers and held for such purpose (the “Purchaser Special Meeting”), in favor of resolutions approving (i) the adoption and approval of this Agreementdirectors, and the transactions contemplated hereby or referred to herein, including the Merger, by the holders of Purchaser Common Stock in accordance with the Purchaser’s Organizational Documents, the DCGL and the rules and regulations of the SEC and Nasdaq and (ii) the approval of the Amended Purchaser Certificate of Incorporation to in part increase the authorized its capital stock of the Purchaser; and (iii) such other matters as the Seller and the Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (iii), collectively, the “Purchaser Stockholder Approval Matters”); and (iv) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation rules set forth in the Purchaser’s Organizational Documents and the rules and regulations of the SEC and Nasdaq. The Purchaser shall cooperate and provide the Seller (and its counsel) with sufficient opportunity to review and comment on the Proxy Statement and any amendment or supplement thereto prior to filing the same with the SEC. The Seller shall provide the Purchaser with such information concerning the Target Entities and their stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto.
(b) The Purchaser shall use its best efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Exchange Act and other applicable Laws reasonably request in connection with the Proxy Statement preparation and the Purchaser Special Meeting. Each filing of the Purchaser and the Seller shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the Seller, the Purchaser and, after the Closing, the Purchaser Representative, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for PVY will use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents.
(c) The Purchaser, with the assistance of the other Parties, shall use its all commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from be cleared by the SEC as promptly as practicable after filing and become effectiveas promptly as practicable after such clearance, PVY shall mail the Proxy Statement to its stockholders entitled to notice of and to vote at the PVY Meeting. The Purchaser As promptly as practical after consultation between SUG and PVY, PVY shall provide the Seller with copies of respond to any written comments, and shall inform the Seller of any material oral comments, that the Purchaser or its Representatives receive from comments made by the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting promptly after the receipt of such comments and shall give the Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(dii) As soon as practicable following The information supplied by PVY for inclusion or incorporation by reference in the Proxy Statement “clearing” comments from shall not, at the SEC and becoming effective, the Purchaser shall distribute the Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” of comments on the Proxy Statement.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement (or any supplement thereto) and at the time of the PVY Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If at any time prior to PVY Meeting any event or circumstance relating to PVY or any of its Subsidiaries, or its or their respective officers or directors, should be discovered by PVY that should be set forth in a supplement to the Purchaser’s stockholdersProxy Statement, then unless prohibited PVY shall promptly inform SUG. All documents that PVY is responsible for filing with the SEC in connection with the transactions contemplated herein shall comply as to form in all material respects with the applicable requirements of the Securities Act and the regulations thereunder and the Exchange Act and the regulations thereunder.
(iii) The information supplied by Delaware law governing distributions to stockholdersSUG for inclusion or incorporation by reference in the Proxy Statement shall not, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to at the date of redemption extinguishedthe mailing of the Proxy Statement (or any supplement thereto), at the time of the PVY Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in consideration the light of the right to receive an aggregate amountcircumstances under which they are made, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with not misleading. If at any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue time prior to the Seller a number of shares PVY Meeting any event or circumstance relating to SUG or any of its common stock Subsidiaries, or to their respective officers or directors, should be discovered by SUG that should be set forth in a supplement to the Proxy Statement, SUG shall promptly inform PVY.
(iv) No representation, warranty, covenant or agreement is made by or on behalf of PVY with respect to information supplied by any other Person for inclusion in the Proxy Statement. No representation, warranty, covenant or agreement is made by or on behalf of SUG with respect to information supplied by any other Person for inclusion in the Proxy Statement. No filing of, or amendment or supplement to, the Proxy Statement shall be made by PVY without providing SUG with the opportunity to review and comment thereon (except for any ongoing SEC reporting required of PVY or ProvGas that will be incorporated by reference). If at any time prior to the PVY Meeting any information relating to any party hereto or any of their respective officers, directors, shareholders or Subsidiaries, should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement so that the Seller Proxy Statement would not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall own 93.3% of Delaware Sub following promptly notify the other party hereto and an appropriate amendment or supplement describing such issuance and information shall be promptly prepared, filed with the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything SEC and, to the contrary hereinextent required by law, if the occurrence of the events described herein are due disseminated to the failure shareholders of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f)PVY.
Appears in 2 contracts
Samples: Merger Agreement (Providence Energy Corp), Merger Agreement (Southern Union Co)
The Proxy Statement. (a) On or prior to December 31As promptly as practicable after the date hereof, 2022and in consultation with the Company, the Purchaser shall prepare with the reasonable assistance of the Seller, and file with the SEC a Proxy Statement proxy statement (as amendedamended or supplemented from time to time, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special Meeting. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, at calling a special meeting of the Purchaser’s stockholders to be called and held for such purpose shareholders (the “Purchaser Special Shareholder Meeting”), in favor of resolutions approving (i) accordance with the adoption and Purchaser Charter, seeking the approval of this Agreement, and the Purchaser’s shareholders for the transactions contemplated hereby or referred by this Agreement and offering to hereinredeem from the Public Shareholders their Purchaser Ordinary Shares in conjunction with a shareholder vote on the transactions contemplated by this Agreement (the “Redemption”), including and each of the MergerPurchaser and the Company shall use its commercially reasonable efforts to obtain and furnish the information required by the Exchange Act to be included in the Proxy Statement, all in accordance with and as required by the Purchaser’s Organizational Documents, the IPO Prospectus, applicable Law and any applicable rules and regulations of the SEC and Nasdaq. In the Proxy Statement, the Purchaser shall seek approval by the holders of Purchaser Common Stock Ordinary Shares in accordance with the Purchaser’s Organizational Documents, the DCGL BVI Act, and the rules and regulations of the SEC and Nasdaq of (i) this Agreement and the transactions contemplated hereby or referred to herein (including, if required, the issuance of the PIPE Shares), (ii) if required to be approved by the Purchaser’s shareholders, adoption and approval of an Amended and Restated Memorandum and Articles of Association of the Purchaser in form and substance reasonably acceptable to the Purchaser and the Company (the “Amended Charter”) (which Amended Charter, if appropriate as determined by the Purchaser, will be adopted by the Purchaser Certificate in two separate amendments, one prior to the consummation of Incorporation the PIPE Investment in order to further detail the rights of any PIPE Shares, as necessary, and the other to become effective at the time of the Closing and upon registration by the BVI Registry to, among other things, change the name of the Purchaser effective as of the Closing to “Borqs Technologies, Inc.”, (iii) adoption and approval of a new equity incentive plan in part increase a form to be agreed by the authorized capital stock Purchaser and the Company, acting reasonably (the “Purchaser Equity Plan”), and which will provide for awards for a number of Purchaser Ordinary Shares (including those for the Assumed Options) equal to the difference between (A) thirteen and one-half percent (13.5%) of the aggregate number of Purchaser Ordinary Shares issued and outstanding immediately after the Closing, less (B) the number of Purchaser Ordinary Shares that are subject to the Assumed Options, (iv) to appoint, and designate the classes of, the members of the board of directors of the Purchaser; , and appoint the members of any committees thereof, in each case in accordance with Section 5.17 hereof, (iiiv) such to obtain any and all other matters as the Seller and the Purchaser shall hereafter mutually determine to be approvals necessary or appropriate in order advisable to effect the Merger and consummation of the other transactions contemplated by this Agreement and the Ancillary Documents (the approvals described in the foregoing clauses (i) through (iiiv), collectively, the “Purchaser Stockholder Shareholder Approval Matters”); , and (ivvi) the adjournment of the Purchaser Special Shareholder Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser will also file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation rules set forth in the Purchaser’s Organizational Documents Documents, the BVI Act and the rules and regulations of the SEC and Nasdaq. The Purchaser shall cooperate Nasdaq (such Proxy Statement and provide the Seller documents included or referred to therein pursuant to which the Redemption will be made, together with any additional soliciting materials, supplements, amendments and/or exhibits thereto, the “Proxy Documents”).
(and its counselb) Except with sufficient opportunity respect to review and comment the information provided by or on behalf of the Target Companies for inclusion in the Proxy Statement and any amendment or supplement thereto prior to filing other Proxy Documents, the same Purchaser shall ensure that, when filed, the Proxy Statement and other Proxy Documents complies in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. As soon as reasonably practicable after receiving clearance from the SEC, the Purchaser shall cause the Proxy Documents to be disseminated as promptly as practicable to the Purchaser’s shareholders as and to the extent such dissemination is required by U.S. federal securities laws and the rules and regulations of the SEC and Nasdaq promulgated thereunder or otherwise (the “Federal Securities Laws”). The Seller Company shall as promptly as possible provide to the Purchaser with such information concerning the Company Shareholders, the Target Entities Companies and their stockholdersrespective businesses, officers, directors, employees, assets, Liabilitiesoperations, condition (financial or otherwise), business assets, Liabilities, properties, officers, directors and operations that may be employees as is either required by Federal Securities Laws or appropriate reasonably requested by the Purchaser for inclusion in the Proxy StatementDocuments. Subject to compliance by the Company with the immediately preceding sentence with respect to the information provided or to be provided by or on behalf of them for inclusion in the Proxy Documents, or the Purchaser shall cause the Proxy Documents to comply in all material respects with the Federal Securities Laws. The Purchaser shall provide copies of the proposed forms of the Proxy Documents (including, in each case, any amendments or supplements thereto.
(b) to Company such that the Company and its Representatives are afforded a reasonable amount of time prior to the dissemination or filing thereof to review such material and comment thereon prior to such dissemination or filing, and the Purchaser shall reasonably consider in good faith any comments of the Company and its Representatives. The Purchaser, in consultation with the Company and its Representatives, shall respond promptly to any comments of the SEC or its staff with respect to the Proxy Documents and promptly correct any information provided by it for use in the Proxy Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by the Federal Securities Laws. The Purchaser shall use its best efforts take any amend or supplement the Proxy Documents and all reasonable and necessary actions required cause the Proxy Documents, as so amended or supplemented, to satisfy the requirements of the Exchange Act and other applicable Laws in connection be filed with the Proxy Statement SEC and to be disseminated to the Purchaser’s shareholders, in each case as and to the extent required by the Federal Securities Laws and subject to the terms and conditions of this Agreement and the Purchaser Special MeetingOrganizational Documents. Each The Purchaser shall provide the Company and its Representatives with copies of any written comments, and shall inform them of any material oral comments, that the Purchaser or any of its Representatives receive from the SEC or its staff with respect to the Proxy Documents promptly after the receipt of such comments and shall give the Seller Company a reasonable opportunity under the circumstances to review and comment on any proposed written or oral responses to such comments. The Company shall, and shall cause each of its Subsidiaries the Target Companies to, make their respective directors, officers and employees, upon reasonable advance notice, available to the Seller, the Purchaser and, after the Closing, the Purchaser Representative, and their respective its Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, Documents and responding in a timely manner to comments from the SEC. Each Party shall As promptly correct any information provided by it for use in as reasonably practicable after the Proxy Statement (and other related materials) if and to has “cleared” comments from the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The SEC, the Purchaser shall amend or supplement cause the definitive Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s stockholdersshareholders, and shall duly call, give notice of, convene and hold the Shareholder Meeting.
(c) If at any time prior to the Closing, any information relating to the Purchaser, on the one hand, or the Target Companies, on the other hand, or any of their respective Affiliates, businesses, operations, condition (financial or otherwise), assets, Liabilities, properties, officers, directors or employees, should be discovered by the Purchaser, on the one hand, or the Target Companies, on the other hand, that should be set forth in an amendment or supplement to the Proxy Documents so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify each case as other Party and shall cooperate with the other Parties to ensure that an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents.
(c) The Purchaserlaw, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effective. The Purchaser shall provide the Seller with copies of any written comments, and shall inform the Seller of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting promptly after the receipt of such comments and shall give the Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the Proxy Statement disseminated to the Purchaser’s stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” of comments on the Proxy Statementshareholders.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f).
Appears in 2 contracts
Samples: Merger Agreement (Borqs Technologies, Inc.), Merger Agreement (Pacific Special Acquisition Corp.)
The Proxy Statement. (a) On or prior to December 31, 2022As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the SellerCompany, and file with the SEC a Proxy Statement proxy statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special MeetingMeeting and providing the Public Stockholders an opportunity in accordance with the Purchaser’s Organizational Documents and the IPO Prospectus to have their shares of Purchaser Common Stock redeemed (the “Redemption”) in conjunction with the stockholder vote on the Stockholder Approval Matters. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, at a special an extraordinary general meeting of the Purchaser’s Purchaser stockholders to be called and held for such purpose (the “Purchaser Special Meeting”), in favor of resolutions approving (i) the adoption and approval of this Agreement, Agreement and the transactions contemplated hereby or referred to herein, including the MergerMerger (and, to the extent required, the issuance of any shares in connection with the PIPE Investment), by the holders of shares of Purchaser Common Stock in accordance with the Purchaser’s Organizational Documents, the DCGL DGCL and the rules and regulations of the SEC and Nasdaq and NYSE, (ii) the change of name of the Purchaser and the adoption and approval of the Amended Organizational Documents, (iii) adoption and approval of a new equity incentive plan in form and substance reasonably acceptable to the Company Stockholder and the Purchaser Certificate (the “Incentive Plan”), and which will provide for awards for a number of Incorporation shares of Purchaser Common Stock equal to in part increase the authorized capital stock ten percent (10%) of the Purchaser; aggregate number of shares of Purchaser Common Stock issued and outstanding immediately after the Closing (iiigiving effect to the Redemption), (iv) the appointment of the members of the Post-Closing Purchaser Board in accordance with Section 6.17 hereof, (v) such other matters as the Seller Company and the Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (iiiv), collectively, the “Purchaser Stockholder Approval Matters”); , and (ivvi) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation and registration statement rules set forth in the Purchaser’s Organizational Documents Documents, the DGCL and the rules and regulations of the SEC and NasdaqNYSE. The Purchaser shall cooperate and provide the Seller Company (and its counsel) with sufficient a reasonable opportunity to review and comment on the Proxy Statement and any amendment or supplement thereto prior to filing the same with the SEC. The Seller Company shall provide the Purchaser with such information concerning the Target Entities Company and their its stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto, which information provided by the Company shall be true and correct and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.
(b) The Purchaser shall use its best efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange Act and other applicable Laws in connection with the Proxy Statement and Statement, the Purchaser Special MeetingMeeting and the Redemption. Each of the Purchaser and the Seller Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the SellerCompany, the Purchaser and, after the Closing, the Purchaser RepresentativeDisinterested Director Majority, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s Purchaser stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effectiveSEC. The Purchaser shall provide the Seller Company with copies of any written comments, and shall inform the Seller Company of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting and the Redemption promptly after the receipt of such comments and shall give the Seller Company a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effectiveSEC, the Purchaser shall distribute the definitive Proxy Statement to the Purchaser’s stockholdersstockholders and the Company Stockholder, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” filing of comments on the definitive Proxy Statement.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of NasdaqNYSE, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser Meeting and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f)Redemption.
Appears in 2 contracts
Samples: Merger Agreement (Megalith Financial Acquisition Corp), Merger Agreement (Customers Bancorp, Inc.)
The Proxy Statement. (a) On or prior to December 31, 2022As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the SellerCompany, and file with the SEC a Proxy Statement proxy statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special MeetingMeeting and providing the Public Stockholders an opportunity in accordance with the Purchaser’s Organizational Documents and the IPO Prospectus to have their shares of Purchaser Common Stock redeemed (the “Redemption”) in conjunction with the stockholder vote on the Purchaser Stockholder Approval Matters, which shall include, if requested by the Company, a joint registration statement (the “Registration Statement”) relating to the registration under the Securities Act of the Merger Consideration Shares. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, at a special meeting of the Purchaser’s Purchaser stockholders to be called and held for such purpose (the “Purchaser Special Meeting”), in favor of resolutions approving (i) the adoption and approval of this Agreement, Agreement and the transactions contemplated hereby or referred to herein, including the MergerMerger (and, to the extent required, the issuance of any shares in connection with the PIPE Investment), by the holders of shares of Purchaser Common Stock in accordance with the Purchaser’s Organizational Documents, the Act, the DCGL and the rules and regulations of the SEC and Nasdaq and Nasdaq, (ii) the approval change of name of the Amended Purchaser Certificate of Incorporation to in part increase (iii) the authorized capital stock appointment of the Purchaser; and members of the Post-Closing Purchaser Board in accordance with Section 6.16 hereof, (iiiiv) such other matters as the Seller Company and the Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (iiiiv), collectively, the “Purchaser Stockholder Approval Matters”); , and (ivv) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation rules set forth in the Purchaser’s Organizational Documents Documents, the Act, the DGCL and the rules and regulations of the SEC and Nasdaq. The Purchaser shall cooperate and provide the Seller Company (and its counsel) with sufficient a reasonable opportunity to review and comment on the Proxy Statement and any amendment or supplement thereto prior to filing the same with the SEC. The Seller Company shall provide the Purchaser with such information concerning the Target Entities Company and their its stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto, which information provided by the Company shall be true and correct and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.
(b) The Purchaser shall use its best efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange Act and other applicable Laws in connection with the Proxy Statement and Statement, the Purchaser Special MeetingMeeting and the Redemption. Each of the Purchaser and the Seller Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the SellerCompany, the Purchaser and, after the Closing, the Purchaser Representative, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s Purchaser stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effectiveSEC. The Purchaser shall provide the Seller Company with copies of any written comments, and shall inform the Seller Company of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting and the Redemption promptly after the receipt of such comments and shall give the Seller Company a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effectiveSEC, the Purchaser shall distribute the definitive Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL Act for a date no later than thirty (30) days following the “clearing” filing of comments on the definitive Proxy Statement.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the SEC, Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser Meeting and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f)Redemption.
Appears in 2 contracts
Samples: Merger Agreement (Digital Ally, Inc.), Merger Agreement (Clover Leaf Capital Corp.)
The Proxy Statement. (a) On or prior to December 31, 2022As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the Seller, and file with the SEC a Proxy Statement proxy statement (as amendedamended or supplemented from time to time, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special Meeting. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, at calling a special meeting of the Purchaser’s stockholders to be called and held for such purpose shareholders (the “Purchaser Special Shareholder Meeting”)) seeking the approval of the Purchaser’s shareholders for the transactions contemplated by this Agreement and, if applicable the spin-off transaction contemplated by Section 6.20, in favor accordance with and as required by the Purchaser’s Organizational Documents, applicable Law and any applicable rules and regulations of resolutions approving the SEC and NYSE. In the Proxy Statement, the Purchaser shall seek (i) the adoption and approval of this Agreement, Agreement and the transactions contemplated hereby or referred to herein, including and, if applicable the Mergerspin-off transaction contemplated by Section 6.20, by the holders of Purchaser Common Stock Shares in accordance with the Purchaser’s Organizational Documents, the DCGL NRS, and the rules and regulations of the SEC and Nasdaq and NYSE, (ii) if required to be approved by the Purchaser’s shareholders, adoption and approval of the an Amended Purchaser Certificate and Restated Articles of Incorporation of the Purchaser in form and substance reasonably acceptable to in part increase the authorized capital stock Purchaser and the Company (the “Amended Charter”) (which Amended Charter, if appropriate as determined by the Purchaser, will be adopted by the Purchaser at the time of the Closing to, among other things, change the name of the Purchaser effective as of the Closing), (iii) to appoint the members of the board of directors of the Purchaser; , and appoint the members of any committees thereof, in each case in accordance with Section 6.16 hereof, and (iiiiv) such to obtain any and all other matters as the Seller and the Purchaser shall hereafter mutually determine to be approvals necessary or appropriate in order advisable to effect the Merger and consummation of the other transactions contemplated by this Agreement (and the approvals described in foregoing clauses (i) through (iii), collectively, the “Purchaser Stockholder Approval Matters”); and (iv) the adjournment of the Purchaser Special MeetingAncillary Documents and, if necessary or desirable in applicable the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meetingspin-off transaction contemplated by Section 6.20. In connection with the Proxy Statement, the Purchaser will also file with the SEC financial and other information about the transactions contemplated by this Agreement and, if applicable the spin-off transaction contemplated by Section 6.20, in accordance with applicable Law and applicable proxy solicitation rules set forth in the Purchaser’s Organizational Documents Documents, the NRS and the rules and regulations of the SEC and NasdaqNYSE (such Proxy Statement and the documents included or referred to therein, together with any supplements, amendments and/or exhibits thereto, the “Proxy Documents”).
(b) Except with respect to the information provided by or on behalf of the Target Companies or the Sellers for inclusion in the Proxy Statement and other Proxy Documents, the Purchaser shall ensure that, when filed, the Proxy Statement and other Proxy Documents will comply in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. The Purchaser shall cooperate and provide the Seller (and its counsel) with sufficient opportunity to review and comment on cause the Proxy Statement Documents to be disseminated as promptly as practicable to the Purchaser’s equity holders as and any amendment to the extent such dissemination is required by U.S. federal securities laws and the rules and regulations of the SEC and NYSE promulgated thereunder or supplement thereto prior to filing otherwise (the same with the SEC“Federal Securities Laws”). The Seller Company and the Sellers shall promptly provide to the Purchaser with such information concerning the Sellers, the Target Entities Companies and their stockholdersrespective businesses, officers, directors, employees, assets, Liabilitiesoperations, condition (financial or otherwise), business assets, Liabilities, properties, officers, directors and operations that may be employees as is either required by Federal Securities Laws or appropriate reasonably requested by the Purchaser for inclusion in the Proxy StatementDocuments. Subject to compliance by the Company and the Sellers with the immediately preceding sentence with respect to the information provided or to be provided by or on behalf of them for inclusion in the Proxy Documents, or the Purchaser shall cause the Proxy Documents to comply in all material respects with the Federal Securities Laws. The Purchaser shall provide copies of the proposed forms of the Proxy Documents (including any amendments or supplements thereto.
(b) to the Company such that the Company and its Representatives are afforded a reasonable amount of time prior to the dissemination or filing thereof to review such material and comment thereon prior to such dissemination or filing, and the Purchaser shall reasonably consider in good faith any comments of such Persons. The Purchaser and the Company and their respective Representatives shall respond promptly to any comments of the SEC or its staff with respect to the Proxy Documents and promptly correct any information provided by it for use in the Proxy Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by the Federal Securities Laws. The Purchaser shall amend or supplement the Proxy Documents and cause the Proxy Documents, as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of Purchaser Shares, in each case as and to the extent required by the Federal Securities Laws and subject to the terms and conditions of this Agreement and the Purchaser Organizational Documents and, if applicable the spin-off transaction contemplated by Section 6.20. The Purchaser shall provide the Company and its Representatives with copies of any written comments, and shall inform them of any material oral comments, that the Purchaser or any of its Representatives receive from the SEC or its staff with respect to the Proxy Documents promptly after the receipt of such comments and shall give the Company a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments. The Purchaser shall use its best reasonable commercial efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Exchange Act and other applicable Laws in connection with cause the Proxy Statement to “clear” comments from the SEC and its staff and to permit the Company and its Representatives to participate with the Purchaser or its Representatives in any discussions or meetings with the SEC and its staff. The Company and the Purchaser Special Meeting. Each of the Purchaser and the Seller Sellers shall, and shall cause each of its Subsidiaries the Target Companies to, make their respective directors, officers and employees, upon reasonable advance notice, available to the Seller, the Purchaser and, after the Closing, the Purchaser Representative, and their respective its Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy StatementDocuments, and responding in a timely manner to comments from the SEC. Each Party The Purchaser shall call the Shareholder Meeting as promptly correct any information provided by it for use in as reasonably practicable after the Proxy Statement has “cleared” comments from the SEC.
(and other related materialsc) if and If at any time prior to the extent Closing, any information relating to the Purchaser, on the one hand, or the Target Companies or the Sellers, on the other hand, or any of their respective Affiliates, businesses, operations, condition (financial or otherwise), assets, Liabilities, properties, officers, directors or employees, should be discovered by the Purchaser, on the one hand, or the Target Companies or the Sellers, on the other hand, that should be set forth in an amendment or supplement to the Proxy Documents, so that such information is determined documents would not include any misstatement of a material fact or omit to have become false or misleading in state any material respect or as otherwise required by applicable Laws. The Purchaser fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall amend promptly notify each other Parties and an appropriate amendment or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to describing such information shall be promptly filed with the SEC and and, to be the extent required by law, disseminated to the Purchaser’s stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documentsshareholders.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effective. The Purchaser shall provide the Seller with copies of any written comments, and shall inform the Seller of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting promptly after the receipt of such comments and shall give the Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” of comments on the Proxy Statement.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f).
Appears in 1 contract
The Proxy Statement. (a) On or prior The Company and Parent shall, as soon as practicable following the execution of this Agreement, cooperate in taking steps to December 31, 2022, the Purchaser shall prepare with the reasonable assistance of the Seller, and file with the SEC a the Proxy Statement (as amended, in a form mutually agreeable to the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special MeetingCompany and Parent). The Proxy Statement Company and Parent shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders cooperate to vote, at a special meeting of the Purchaser’s stockholders respond promptly to be called and held for such purpose (the “Purchaser Special Meeting”), in favor of resolutions approving (i) the adoption and approval of this Agreement, and the transactions contemplated hereby or referred to herein, including the Merger, by the holders of Purchaser Common Stock in accordance with the Purchaser’s Organizational Documents, the DCGL and the rules and regulations any comments of the SEC and Nasdaq and (ii) the approval of the Amended Purchaser Certificate of Incorporation Company shall use its reasonable efforts to in part increase the authorized capital stock of the Purchaser; and (iii) such other matters as the Seller and the Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (iii), collectively, the “Purchaser Stockholder Approval Matters”); and (iv) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation rules set forth in the Purchaser’s Organizational Documents and the rules and regulations of the SEC and Nasdaq. The Purchaser shall cooperate and provide the Seller (and its counsel) with sufficient opportunity to review and comment on have the Proxy Statement and any amendment or supplement thereto prior to filing cleared by the same with the SECSEC as promptly as practicable. The Seller shall provide the Purchaser with such information concerning the Target Entities and their stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto.
(b) The Purchaser shall use its best efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Exchange Act and other applicable Laws in connection with Promptly after the Proxy Statement and has been cleared by the Purchaser Special Meeting. Each of the Purchaser and the Seller shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the SellerSEC, the Purchaser and, after the Closing, the Purchaser Representative, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party Company shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effective. The Purchaser shall provide the Seller with copies of any written comments, and shall inform the Seller of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting promptly after the receipt of such comments and shall give the Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” of comments on the Proxy Statement.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting shareholders and shall use its reasonable best efforts to solicit proxies in favor of the Purchaser’s stockholders is approval of this Agreement and the Plan of Merger.
(b) The Company shall cause the Trustee of the ESOP to comply with the pass-through voting requirements of the ESOP and the Code in a manner reasonably acceptable to Parent. By way of example and not duly convened for of limitation, the purpose Company shall cause the Trustee of obtaining the Conversion Approvals within forty (40) days following the mailing ESOP to furnish to each participant a copy of the Proxy Statement and such other information as may be necessary to explain the participant's right to direct the Trustee as to the Purchaser’s stockholdersvoting of Company Common Stock allocated to his ESOP account at the Special Meeting and the participant's right to exercise dissenters' rights under the applicable provisions of the VSCA. The Company shall cause the Trustee of the ESOP to take such steps as may be required to assure the confidentiality of the ESOP participants' directions.
(c) If, at any time prior to the Special Meeting, any event occurs as a result of which the Proxy Statement as then unless prohibited by Delaware law governing distributions amended or supplemented would include any untrue statement of a material fact or omit to stockholdersstate any material fact necessary to make the statements contained therein, all issued and outstanding shares in light of Series A Preferred Stock and Series B Preferred Stock the circumstances under which they were made, not misleading, or if it shall be immediately necessary to amend the or supplement the Proxy Statement to comply with the Securities Act, the Exchange Act or the rules thereunder, the Company and automatically redeemed by Parent will cooperate to permit Parent promptly to prepare and file with the Corporation, SEC and all accrued and unpaid dividends thereon mail to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance shareholders and the Purchaser shall own 6.7% participants in the ESOP, subject to clause ((a)) of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f)6.3, an amendment or supplement that will correct such statement or omission or effect such compliance.
Appears in 1 contract
The Proxy Statement. (a) On or prior to December 31, 2022As promptly as practicable after the date hereof, the Purchaser shall prepare prepare, with the reasonable assistance of the SellerCompany, and file with the SEC a Proxy Statement proxy statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser Purchaser’s stockholders for the matters to be acted upon at the Purchaser Special MeetingMeeting and providing the Public Stockholders (as defined below) an opportunity in accordance with the Purchaser’s Organizational Documents and the IPO Prospectus to have their shares of Purchaser Class A Common Stock redeemed (the “Redemption”) in conjunction with the stockholder vote on the Purchaser’s Business Combination. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser Purchaser’s stockholders to vote, at a special meeting of the Purchaser’s Purchaser stockholders to be called duly called, noticed and held for such purpose (together with any adjournment or postponement thereof, the “Purchaser Special Meeting”), in favor of resolutions approving (i) the adoption and approval of this Agreement, and the transactions contemplated hereby or referred to herein, including the Merger, by the holders of Purchaser Common Stock Purchaser’s Business Combination (as defined below) in accordance with the Purchaser’s Organizational Documents, (ii) the DCGL Amended Purchaser Charter in accordance with the DGCL (iii) the issuance of shares of New Purchaser Common Stock pursuant to the First Merger and Additional PIPE Investment (as defined below) in accordance with the Purchaser’s Organizational Documents the DGCL and the rules and regulations of the SEC and Nasdaq and Nasdaq, (iiiv) the adoption and approval of the Amended Equity Incentive Plan (as defined below), in a form to reasonably agreed upon by the Purchaser Certificate of Incorporation to in part increase and the authorized capital stock of Company during the Purchaser; and Interim Period, (iiiv) such other matters as the Seller Company and the Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement Transactions (the approvals described in foregoing clauses (i) through (iiiv), collectively, the “Purchaser Stockholder Approval Matters”); , and (ivvi) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special MeetingMeeting in accordance with the Purchaser’s Organizational Documents, the DGCL and the rules and regulations of the SEC and Nasdaq. In connection with the Proxy Statement, the Purchaser will shall file with the SEC financial and other information about the transactions contemplated by this Agreement Transactions in accordance with applicable Law and applicable proxy solicitation and registration statement rules set forth in the Purchaser’s Organizational Documents Documents, the DGCL and the rules and regulations of the SEC and Nasdaq. The Purchaser shall cooperate and provide the Seller Company (and its counsel) with sufficient a reasonable opportunity to review and comment on the Proxy Statement and any amendment or supplement thereto prior to filing the same with the SEC. The Seller Company shall provide the Purchaser with such information concerning the Target Entities Companies and their stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto, which information provided by the Company shall be true and correct and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.
(b) The Purchaser shall use its best efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange Act and other applicable Laws in connection with the Proxy Statement and Statement, the Purchaser Special MeetingMeeting and the Redemption. Each of the Purchaser and the Seller Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the SellerCompany, the Purchaser and, after the Closing, the Purchaser Representative, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this AgreementTransactions, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s Purchaser stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effectiveeffective as promptly as practicable. The Purchaser shall provide the Seller Company with copies of any written comments, and shall inform the Seller Company of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting and the Redemption promptly after the receipt of such comments and shall give the Seller Company a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable (but in any case no later than twenty (20) days) following the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the definitive Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call duly call, give notice of, convene and hold the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following Purchaser’s Organizational Documents and the “clearing” of comments on the Proxy StatementDGCL.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of the SEC and Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling calling, noticing of, convening and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser Meeting and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f)Redemption.
Appears in 1 contract
The Proxy Statement. (a) On or prior to December 31, 2022As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the SellerCompany, and file with the SEC a Proxy Statement Form S-4 (or other applicable form) registration statement and proxy statement in connection with the registration under the Securities Act of the Purchaser Common Stock to be issued under this Agreement as the Merger Consideration (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special MeetingMeeting and providing the Public Stockholders an opportunity in accordance with the Purchaser’s Organizational Documents and the IPO Prospectus to have their Purchaser Common Stock redeemed (the “Redemption”) in conjunction with the stockholder vote on the Purchaser Stockholder Approval Matters. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, vote at a special meeting of the Purchaser’s Purchaser stockholders to be called and held for such purpose (the “Purchaser Special Meeting”), in favor of resolutions approving (i) the adoption and approval of this Agreement, Agreement and the transactions contemplated hereby or referred to herein, including the Merger, by the holders of the Purchaser Common Stock in accordance with the Purchaser’s Organizational Documents, the DCGL Securities Act, the DGCL and the rules and regulations of the SEC and Nasdaq and Nasdaq, (ii) the adoption and approval of the Amended Purchaser Certificate of Incorporation to in part increase Incorporation, including the authorized capital stock change of name of the Purchaser; and , (iii) adoption and approval of a new equity incentive plan in form and substance reasonably acceptable to the Parties (the “Incentive Plan”), and which will provide for awards for a number of shares of the Purchaser Common Stock equal (A) fifteen percent (15%) of the aggregate number of shares of the Purchaser Common Stock issued and outstanding immediately after the Closing (giving effect to the Redemption), (vi) the appointment of the members of the Post-Closing Purchaser Board in accordance with Section 5.17, (v) such other matters as the Seller Company and the Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (iiiv), collectively, the “Purchaser Stockholder Approval Matters”); , and (ivvi) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation and registration statement rules set forth in the Purchaser’s Organizational Documents Documents, the Securities Act, the DGCL and the rules and regulations of the SEC and Nasdaq. The Purchaser shall cooperate and provide the Seller Company (and its counsel) with sufficient a reasonable opportunity to review and comment on the Proxy Statement and any amendment or supplement thereto prior to filing the same with the SEC, and Purchaser shall consider any such comments timely made in good faith. The Seller Company shall provide the Purchaser with such information concerning the Target Entities Companies and their stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto, which information provided by the Company shall be true and correct and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.
(b) The Purchaser shall use its best efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange Act and other applicable Laws in connection with the Proxy Statement and Statement, the Purchaser Special MeetingMeeting and the Redemption. Each of the Purchaser and the Seller Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the SellerCompany, the Purchaser and, after the Closing, the Purchaser Representative, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s Purchaser stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents; provided, however, that the Purchaser shall not amend or supplement the Proxy Statement without prior consultation with the Company as is reasonable under the circumstances.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effective. The Purchaser shall provide the Seller Company with copies of any written comments, and shall inform the Seller Company of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting and the Redemption promptly after the receipt of such comments and shall give the Seller Company and its counsel a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments, and the Purchaser shall consider any such comments timely made in good faith under the circumstances.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the Proxy Statement to the Purchaser’s stockholdersstockholders and the Company Stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL Securities Act for a date no later than thirty (30) days following the “clearing” effectiveness of comments on the Proxy Statement.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) Meeting and the Redemption. The Purchaser shall apply for, and shall take commercially reasonable actions to cause, the Purchaser or its counsel fail Common Stock to respond be issued in connection with the Merger to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each be approved for listing on Nasdaq as of the Purchaser and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f)Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pono Capital Two, Inc.)
The Proxy Statement. (a) On or prior to December 31, 2022As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the SellerCompany, and file with the SEC a Proxy Statement proxy statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special MeetingMeeting and providing the Public Stockholders an opportunity in accordance with the Purchaser’s Organizational Documents and the IPO Prospectus to have their shares of Purchaser Common Stock redeemed (the “Redemption”) in conjunction with the stockholder vote on the Purchaser Stockholder Approval Matters. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, at a special meeting of the Purchaser’s Purchaser stockholders to be called and held for such purpose (the “Purchaser Special Meeting”), in favor of resolutions approving (i) the adoption and approval of this Agreement, Agreement and the transactions contemplated hereby or referred to herein, including the MergerMerger (and, to the extent required, the issuance of any shares in connection with the PIPE Investment), by the holders of shares of Purchaser Common Stock in accordance with the Purchaser’s Organizational Documents, the Act, the DCGL and the rules and regulations of the SEC and Nasdaq and Nasdaq, (ii) the approval change of name of the Amended Purchaser Certificate of Incorporation to in part increase (iii) the authorized capital stock appointment of the Purchaser; and members of the Post-Closing Purchaser Board in accordance with Section 6.16 hereof, (iiiiv) such other matters as the Seller Company and the Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (iiiiv), collectively, the “Purchaser Stockholder Approval Matters”); , and (ivv) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation rules set forth in the Purchaser’s Organizational Documents Documents, the Act, the DGCL and the rules and regulations of the SEC and Nasdaq. The Purchaser shall cooperate and provide the Seller Company (and its counsel) with sufficient a reasonable opportunity to review and comment on the Proxy Statement and any amendment or supplement thereto prior to filing the same with the SEC. The Seller Company shall provide the Purchaser with such information concerning the Target Entities Company and their its stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto, which information provided by the Company shall be true and correct and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.
(b) The Purchaser shall use its best efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange Act and other applicable Laws in connection with the Proxy Statement and Statement, the Purchaser Special MeetingMeeting and the Redemption. Each of the Purchaser and the Seller Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the SellerCompany, the Purchaser and, after the Closing, the Purchaser Representative, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s Purchaser stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effectiveSEC. The Purchaser shall provide the Seller Company with copies of any written comments, and shall inform the Seller Company of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting and the Redemption promptly after the receipt of such comments and shall give the Seller Company a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effectiveSEC, the Purchaser shall distribute the definitive Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL Act for a date no later than thirty (30) days following the “clearing” filing of comments on the definitive Proxy Statement.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the SEC, Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser Meeting and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f)Redemption.
Appears in 1 contract
Samples: Merger Agreement (Aesther Healthcare Acquisition Corp.)
The Proxy Statement. (a) On or prior to December 31, 2022As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the Seller, and file with the SEC a Proxy Statement proxy statement (as amendedamended or supplemented from time to time, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special Meeting. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, at calling a special meeting of the Purchaser’s stockholders to be called and held for such purpose shareholders (the “Purchaser Special Shareholder Meeting”)) seeking the approval of the Purchaser’s shareholders for the transactions contemplated by this Agreement, in favor accordance with and as required by the Purchaser’s Organizational Documents, applicable Law and any applicable rules and regulations of resolutions approving the SEC and NASDAQ. In the Proxy Statement, the Purchaser shall seek (i) the adoption and approval of this Agreement, Agreement and the transactions contemplated hereby or referred to herein, including the Merger, by the holders of Purchaser Common Stock Shares in accordance with the Purchaser’s Organizational Documents, the DCGL DGCL, and the rules and regulations of the SEC and Nasdaq and NASDAQ, (ii) the adoption and approval of the Spin-Off Agreement and the transactions contemplated thereby in accordance with the Purchaser’s Organizational Documents, the DGCL, and the rules and regulations of the SEC and Nasdaq, (iii) if required to be approved by the Purchaser’s shareholders, adoption and approval of an Amended Purchaser and Restated Certificate of Incorporation of the Purchaser in form and substance reasonably acceptable to in part increase the authorized capital stock Purchaser and the Company (the “Amended Charter”) (which Amended Charter, if appropriate as determined by the Purchaser, will be adopted by the Purchaser at the time of the Closing to, among other things, change the name and domicile of the Purchaser effective as of the Closing), (iv) to appoint the members of the board of directors of the Purchaser; , and appoint the members of any committees thereof, in each case in accordance with Section 6.16 hereof, and (iiiv) such to obtain any and all other matters as the Seller and the Purchaser shall hereafter mutually determine to be approvals necessary or appropriate in order advisable to effect the Merger and consummation of the other transactions contemplated by this Agreement (and the approvals described in foregoing clauses (i) through (iii), collectively, the “Purchaser Stockholder Approval Matters”); and (iv) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special MeetingAncillary Documents. In connection with the Proxy Statement, the Purchaser will also file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation rules set forth in the Purchaser’s Organizational Documents Documents, the DGCL and the rules and regulations of the SEC and NasdaqNASDAQ (such Proxy Statement and the documents included or referred to therein, together with any supplements, amendments and/or exhibits thereto, the “Proxy Documents”).
(b) Except with respect to the information provided by or on behalf of the Target Companies or the Sellers for inclusion in the Proxy Statement and other Proxy Documents, the Purchaser shall ensure that, when filed, the Proxy Statement and other Proxy Documents will comply in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. The Purchaser shall cooperate and provide the Seller (and its counsel) with sufficient opportunity to review and comment on cause the Proxy Statement Documents to be disseminated as promptly as practicable to the Purchaser’s equity holders as and any amendment to the extent such dissemination is required by U.S. federal securities laws and the rules and regulations of the SEC and NASDAQ promulgated thereunder or supplement thereto prior to filing otherwise (the same with the SEC“Federal Securities Laws”). The Seller Company and the Sellers shall promptly provide to the Purchaser with such information concerning the Sellers, the Target Entities Companies and their stockholdersrespective businesses, officers, directors, employees, assets, Liabilitiesoperations, condition (financial or otherwise), business assets, Liabilities, properties, officers, directors and operations that may be employees as is either required by Federal Securities Laws or appropriate reasonably requested by the Purchaser for inclusion in the Proxy StatementDocuments. Subject to compliance by the Company and the Sellers with the immediately preceding sentence with respect to the information provided or to be provided by or on behalf of them for inclusion in the Proxy Documents, or the Purchaser shall cause the Proxy Documents to comply in all material respects with the Federal Securities Laws. The Purchaser shall provide copies of the proposed forms of the Proxy Documents (including any amendments or supplements thereto.
(b) to the Company such that the Company and its Representatives are afforded a reasonable amount of time prior to the dissemination or filing thereof to review such material and comment thereon prior to such dissemination or filing, and the Purchaser shall reasonably consider in good faith any comments of such Persons. The Purchaser and the Company and their respective Representatives shall respond promptly to any comments of the SEC or its staff with respect to the Proxy Documents and promptly correct any information provided by it for use in the Proxy Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by the Federal Securities Laws. The Purchaser shall amend or supplement the Proxy Documents and cause the Proxy Documents, as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of Purchaser Shares, in each case as and to the extent required by the Federal Securities Laws and subject to the terms and conditions of this Agreement and the Purchaser Organizational Documents. The Purchaser shall provide the Company and its Representatives with copies of any written comments, and shall inform them of any material oral comments, that the Purchaser or any of its Representatives receive from the SEC or its staff with respect to the Proxy Documents promptly after the receipt of such comments and shall give the Company a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments. The Purchaser shall use its best reasonable commercial efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Exchange Act and other applicable Laws in connection with cause the Proxy Statement to “clear” comments from the SEC and its staff and to permit the Company and its Representatives to participate with the Purchaser or its Representatives in any discussions or meetings with the SEC and its staff. The Company and the Purchaser Special Meeting. Each of the Purchaser and the Seller Sellers shall, and shall cause each of its Subsidiaries the Target Companies to, make their respective directors, officers and employees, upon reasonable advance notice, available to the Seller, the Purchaser and, after the Closing, the Purchaser Representative, and their respective its Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy StatementDocuments, and responding in a timely manner to comments from the SEC. Each Party The Purchaser shall call the Shareholder Meeting as promptly correct any information provided by it for use in as reasonably practicable after the Proxy Statement has “cleared” comments from the SEC.
(and other related materialsc) if and If at any time prior to the extent Closing, any information relating to the Purchaser, on the one hand, or the Target Companies or the Sellers, on the other hand, or any of their respective Affiliates, businesses, operations, condition (financial or otherwise), assets, Liabilities, properties, officers, directors or employees, should be discovered by the Purchaser, on the one hand, or the Target Companies or the Sellers, on the other hand, that should be set forth in an amendment or supplement to the Proxy Documents, so that such information is determined documents would not include any misstatement of a material fact or omit to have become false or misleading in state any material respect or as otherwise required by applicable Laws. The Purchaser fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall amend promptly notify each other Parties and an appropriate amendment or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to describing such information shall be promptly filed with the SEC and and, to be the extent required by law, disseminated to the Purchaser’s stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documentsshareholders.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effective. The Purchaser shall provide the Seller with copies of any written comments, and shall inform the Seller of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting promptly after the receipt of such comments and shall give the Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” of comments on the Proxy Statement.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f).
Appears in 1 contract
The Proxy Statement. (a) On or prior to December 31, 2022As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the Seller, and file with the SEC a Proxy Statement proxy statement (as amendedamended or supplemented from time to time, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special Meeting. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, at calling a special meeting of the Purchaser’s stockholders to be called and held for such purpose shareholders (the “Purchaser Special Shareholder Meeting”)) seeking the approval of the Purchaser’s shareholders for the transactions contemplated by this Agreement, in favor accordance with and as required by the Purchaser’s Organizational Documents, applicable Law and any applicable rules and regulations of resolutions approving the SEC and NASDAQ. In the Proxy Statement, the Purchaser shall seek (i) the adoption and approval of this Agreement, Agreement and the transactions contemplated hereby or referred to herein, including the Merger, by the holders of Purchaser Common Stock Shares in accordance with the Purchaser’s Organizational Documents, the DCGL DGCL, and the rules and regulations of the SEC and Nasdaq and NASDAQ, (ii) if required to be approved by the Purchaser’s shareholders, adoption and approval of the an Amended Purchaser and Restated Certificate of Incorporation of the Purchaser in form and substance reasonably acceptable to in part increase the authorized capital stock Purchaser and the Company (the “Amended Charter”) (which Amended Charter, if appropriate as determined by the Purchaser, will be adopted by the Purchaser at the time of the Closing to, among other things, change the name and domicile of the Purchaser effective as of the Closing), (iii) to appoint the members of the board of directors of the Purchaser; , and appoint the members of any committees thereof, in each case in accordance with Section 6.16 hereof, and (iiiiv) such to obtain any and all other matters as the Seller and the Purchaser shall hereafter mutually determine to be approvals necessary or appropriate in order advisable to effect the Merger and consummation of the other transactions contemplated by this Agreement (and the approvals described in foregoing clauses (i) through (iii), collectively, the “Purchaser Stockholder Approval Matters”); and (iv) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special MeetingAncillary Documents. In connection with the Proxy Statement, the Purchaser will also file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation rules set forth in the Purchaser’s Organizational Documents Documents, the DGCL and the rules and regulations of the SEC and NasdaqNASDAQ (such Proxy Statement and the documents included or referred to therein, together with any supplements, amendments and/or exhibits thereto, the “Proxy Documents”).
(b) Except with respect to the information provided by or on behalf of the Target Companies or the Sellers for inclusion in the Proxy Statement and other Proxy Documents, the Purchaser shall ensure that, when filed, the Proxy Statement and other Proxy Documents will comply in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. The Purchaser shall cooperate and provide the Seller (and its counsel) with sufficient opportunity to review and comment on cause the Proxy Statement Documents to be disseminated as promptly as practicable to the Purchaser’s equity holders as and any amendment to the extent such dissemination is required by U.S. federal securities laws and the rules and regulations of the SEC and NASDAQ promulgated thereunder or supplement thereto prior to filing otherwise (the same with the SEC“Federal Securities Laws”). The Seller Company and the Sellers shall promptly provide to the Purchaser with such information concerning the Sellers, the Target Entities Companies and their stockholdersrespective businesses, officers, directors, employees, assets, Liabilitiesoperations, condition (financial or otherwise), business assets, Liabilities, properties, officers, directors and operations that may be employees as is either required by Federal Securities Laws or appropriate reasonably requested by the Purchaser for inclusion in the Proxy StatementDocuments. Subject to compliance by the Company and the Sellers with the immediately preceding sentence with respect to the information provided or to be provided by or on behalf of them for inclusion in the Proxy Documents, or the Purchaser shall cause the Proxy Documents to comply in all material respects with the Federal Securities Laws. The Purchaser shall provide copies of the proposed forms of the Proxy Documents (including any amendments or supplements thereto.
(b) to the Company such that the Company and its Representatives are afforded a reasonable amount of time prior to the dissemination or filing thereof to review such material and comment thereon prior to such dissemination or filing, and the Purchaser shall reasonably consider in good faith any comments of such Persons. The Purchaser and the Company and their respective Representatives shall respond promptly to any comments of the SEC or its staff with respect to the Proxy Documents and promptly correct any information provided by it for use in the Proxy Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by the Federal Securities Laws. The Purchaser shall amend or supplement the Proxy Documents and cause the Proxy Documents, as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of Purchaser Shares, in each case as and to the extent required by the Federal Securities Laws and subject to the terms and conditions of this Agreement and the Purchaser Organizational Documents. The Purchaser shall provide the Company and its Representatives with copies of any written comments, and shall inform them of any material oral comments, that the Purchaser or any of its Representatives receive from the SEC or its staff with respect to the Proxy Documents promptly after the receipt of such comments and shall give the Company a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments. The Purchaser shall use its best reasonable commercial efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Exchange Act and other applicable Laws in connection with cause the Proxy Statement to “clear” comments from the SEC and its staff and to permit the Company and its Representatives to participate with the Purchaser or its Representatives in any discussions or meetings with the SEC and its staff. The Company and the Purchaser Special Meeting. Each of the Purchaser and the Seller Sellers shall, and shall cause each of its Subsidiaries the Target Companies to, make their respective directors, officers and employees, upon reasonable advance notice, available to the Seller, the Purchaser and, after the Closing, the Purchaser Representative, and their respective its Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy StatementDocuments, and responding in a timely manner to comments from the SEC. Each Party The Purchaser shall call the Shareholder Meeting as promptly correct any information provided by it for use in as reasonably practicable after the Proxy Statement has “cleared” comments from the SEC.
(and other related materialsc) if and If at any time prior to the extent Closing, any information relating to the Purchaser, on the one hand, or the Target Companies or the Sellers, on the other hand, or any of their respective Affiliates, businesses, operations, condition (financial or otherwise), assets, Liabilities, properties, officers, directors or employees, should be discovered by the Purchaser, on the one hand, or the Target Companies or the Sellers, on the other hand, that should be set forth in an amendment or supplement to the Proxy Documents, so that such information is determined documents would not include any misstatement of a material fact or omit to have become false or misleading in state any material respect or as otherwise required by applicable Laws. The Purchaser fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall amend promptly notify each other Parties and an appropriate amendment or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to describing such information shall be promptly filed with the SEC and and, to be the extent required by law, disseminated to the Purchaser’s stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documentsshareholders.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effective. The Purchaser shall provide the Seller with copies of any written comments, and shall inform the Seller of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting promptly after the receipt of such comments and shall give the Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” of comments on the Proxy Statement.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f).
Appears in 1 contract
Samples: Share Exchange Agreement (China Commercial Credit Inc)
The Proxy Statement. (a) On or prior to December 31As promptly as practicable after the execution of this Agreement, 2022SeqLL, Atlantic and the Purchaser Company shall prepare with the reasonable assistance of the Sellerand mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed), and SeqLL shall file with the SEC SEC, a Proxy Statement preliminary proxy statement on Schedule 14A (as amendedamended or supplemented from time to time, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser SeqLL stockholders for the matters to be acted upon at the Purchaser Special Meeting. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser SeqLL stockholders to votevote at the Special Meeting in favor of resolutions; approving the issuance of SeqLL Common Stock in the Mergers and the change of control of SeqLL; authorization of a change in the size of the Board of Directors with a minimum of one (1) director and a maximum of seven (7) directors; authorization of an amendment to the Governing Documents of SeqLL to effect a reverse stock split of the SeqLL Common Stock on a one (1) new common share for up to thirty (30) shares of old common stock basis, at a special meeting the discretion of the Purchaser’s stockholders to be called and held for such purpose Board of Directors in connection with the consummation of the Mergers (the “Purchaser Special MeetingReverse Stock Split”), in favor ; the authorization of resolutions approving (i) an amendment to the adoption and Governing Documents of SeqLL to change the name of SeqLL following consummation of the Mergers to “Atlantic International Corp.”; authorization of an amendment to the Governing Documents of SeqLL to increase the authorized shares of SeqLL Common Stock from 80,000,000 shares to 300,000,000 shares; approval of this Agreement, the Atlantic International Corp. 2023 Equity Incentive Plan authorizing the issuance of approximately fifteen (15%) percent of the issued and the transactions contemplated hereby or referred to herein, including the Merger, by the holders outstanding shares of Purchaser SeqLL Common Stock in accordance with following the Purchaser’s Organizational DocumentsCapital Raise, the DCGL and the rules and regulations which will become effective upon consummation of the SEC and Nasdaq and (ii) Mergers; the approval of the Amended Purchaser Certificate of Incorporation to in part increase Asset Purchase Agreement by the authorized capital stock of the Purchaserdisinterested stockholders; and (iii) such other related matters and business as may properly come before the Seller and the Purchaser shall hereafter mutually determine to be necessary Special Meeting or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement any adjournments or postponements thereof (the approvals described in foregoing clauses (i) through (iii), collectively, the “Purchaser Stockholder Approval Matters”); and (iv) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the PurchaserSeqLL. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser SeqLL has not received proxies representing a sufficient number of shares to obtain the Required Purchaser SeqLL Stockholder Approval, whether or not a quorum is present, the Purchaser SeqLL may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser SeqLL will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation rules set forth in SeqLL’s Governing Documents, the Purchaser’s Organizational Documents DGCL and the rules and regulations of the SEC and Nasdaq. The Purchaser SeqLL shall cooperate and provide Atlantic and the Seller Company (and its their counsel) with sufficient a reasonable opportunity to review and comment on the Proxy Statement and any amendment or supplement thereto prior to filing the same with the SEC, and SeqLL shall consider in good faith any such comments. The Seller Atlantic and the Company shall promptly provide the Purchaser SeqLL with such information concerning the Target Entities their companies and their stockholders, officers, directors, employees, assets, Liabilitiesliabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto, which information provided by Atlantic or the Company, as the case may be, shall be true and correct in all material respects and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.
(b) The Purchaser SeqLL shall use its best efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Exchange Act and other applicable Laws laws in connection with the Proxy Statement and the Purchaser Special Meeting. Each of the Purchaser SeqLL, Atlantic and the Seller Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to SeqLL, Atlantic and the Seller, the Purchaser Company and, after the Closing, the Purchaser Representative, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Lawslaws. The Purchaser SeqLL shall amend or supplement the preliminary Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s SeqLL stockholders, in each case as and to the extent required by applicable Laws laws and subject to the terms and conditions of this Agreement and the PurchaserSeqLL’s Organizational Documentsorganizational documents.
(c) The PurchaserSeqLL, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the preliminary Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the preliminary Proxy Statement to “clear” comments from the SEC and become effectiveSEC. The Purchaser shall provide the Seller with copies of any written comments, and shall inform the Seller of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting promptly after the receipt of such comments and shall give the Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the preliminary Proxy Statement “clearing” comments from the SEC and becoming effectiveSEC, the Purchaser SeqLL shall distribute the Proxy Statement to the PurchaserSeqLL’s stockholders, stockholders and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” date of comments on mailing of the Proxy Statement.
(ed) The Purchaser SeqLL shall comply with all applicable Lawslaws, any applicable rules and regulations of Nasdaq, the PurchaserSeqLL’s Organizational Governing Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, and the calling and holding of the Purchaser Special Meeting.
(fe) If Each of SeqLL, Atlantic and the Company shall use its commercially reasonable efforts to cause: (i) the Purchaser or its counsel fail SeqLL to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt satisfy all required documentation required from third parties, including, but not limited to the Seller, auditors applicable listing requirements of each of the Purchaser Nasdaq and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause SeqLL Common Stock issuable in accordance with this Agreement, including the Proxy Statement Mergers, to be mailed approved for listing on Nasdaq (and each of Atlantic and the Company shall reasonably cooperate in connection therewith), subject to its stockholders within ten (10) days following SEC clearanceofficial notice of issuance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholdersin each case, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to as promptly as reasonably practicable after the date of redemption extinguishedthis Agreement, and in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue event prior to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f)Second Effective Time.
Appears in 1 contract
The Proxy Statement. (a) On or prior to December 31, 2022As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the SellerCompany, and file with the SEC a Proxy Statement Form S-4 (or other applicable form) registration statement and proxy statement in connection with the registration under the Securities Act of the Purchaser Common Stock to be issued under this Agreement as the Merger Consideration (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special MeetingMeeting and providing the Public Stockholders an opportunity in accordance with the Purchaser’s Organizational Documents and the IPO Prospectus to have their Purchaser Common Stock redeemed (the “Redemption”) in conjunction with the stockholder vote on the Purchaser Stockholder Approval Matters. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, vote at a special meeting of the Purchaser’s Purchaser stockholders to be called and held for such purpose (the “Purchaser Special Meeting”), in favor of resolutions approving (i) the adoption and approval of this Agreement, Agreement and the transactions contemplated hereby or referred to herein, including the Merger, by the holders of the Purchaser Common Stock in accordance with the Purchaser’s Organizational Documents, the DCGL Securities Act, the DGCL and the rules and regulations of the SEC and Nasdaq and Nasdaq, (ii) the adoption and approval of the Amended Purchaser Certificate of Incorporation to in part increase Incorporation, including the authorized capital stock change of name of the Purchaser; and , (iii) adoption and approval of a new equity incentive plan in form and substance reasonably acceptable to the Parties (the “Incentive Plan”), and which will provide for awards for a number of shares of the Purchaser Common Stock equal (A) fifteen percent (15%) of the aggregate number of shares of the Purchaser Common Stock issued and outstanding immediately after the Closing (giving effect to the Redemption), (vi) the appointment of the members of the Post-Closing Purchaser Board in accordance with Section 5.17, (v) such other matters as the Seller Company and the Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (iiiv), collectively, the “Purchaser Stockholder Approval Matters”); , and (ivvi) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation and registration statement rules set forth in the Purchaser’s Organizational Documents Documents, the Securities Act, the DGCL and the rules and regulations of the SEC and Nasdaq. The Purchaser shall cooperate and provide the Seller Company (and its counsel) with sufficient a reasonable opportunity to review and comment on the Proxy Statement and any amendment or supplement thereto prior to filing the same with the SEC, and Purchaser shall consider any such comments timely made in good faith. The Seller Company shall provide the Purchaser with such information concerning the Target Entities Companies and their stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto, which information provided by the Company shall be true and correct and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.
(b) The Purchaser shall use its best efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange Act and other applicable Laws in connection with the Proxy Statement and Statement, the Purchaser Special MeetingMeeting and the Redemption. Each of the Purchaser and the Seller Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the SellerCompany, the Purchaser and, after the Closing, the Purchaser Representative, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s Purchaser stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents.
(c) The Purchaser; provided, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effective. The Purchaser shall provide the Seller with copies of any written comments, and shall inform the Seller of any material oral commentshowever, that the Purchaser shall not amend or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting promptly after the receipt of such comments and shall give the Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following supplement the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance without prior consultation with the DGCL for a date no later than thirty (30) days following Company as is reasonable under the “clearing” of comments on the Proxy Statementcircumstances.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f).
Appears in 1 contract
The Proxy Statement. (a) On or prior to December 31As promptly as practicable after the date hereof, 2022and in consultation with the Company, the Purchaser shall prepare with the reasonable assistance of the Seller, and file with the SEC a Proxy Statement proxy statement (as amendedamended or supplemented from time to time, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special Meeting. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, at calling a special meeting of the Purchaser’s stockholders to be called and held for such purpose shareholders (the “Shareholder Meeting”) in accordance with the Purchaser Special MeetingCharter seeking the approval of the Purchaser’s shareholders for the transactions contemplated by this Agreement and offering to redeem from its Public Shareholders their Purchaser Ordinary Shares in conjunction with a shareholder vote on the transactions contemplated by this Agreement (the “Redemption”), and each of the Purchaser and the Company shall use its commercially reasonable efforts to obtain and furnish the information required by the Exchange Act to be included in favor the Proxy Statement all in accordance with and as required by the Purchaser’s Organizational Documents, the IPO Prospectus, applicable Law and any applicable rules and regulations of resolutions approving the SEC and Nasdaq. In the Proxy Statement, the Purchaser shall seek (i) the adoption and approval of this Agreement, Agreement and the transactions contemplated hereby or referred to herein, including the Merger, herein by the holders of Purchaser Common Stock Ordinary Shares in accordance with the Purchaser’s Organizational Documents, the DCGL BVI Act, and the rules and regulations of the SEC and Nasdaq and Nasdaq, (ii) if required to be approved by the Purchaser’s shareholders, adoption and approval of an Amended and Restated Memorandum and Articles of Association of the Purchaser in form and substance reasonably acceptable to the Purchaser and the Company (the “Amended Charter”), which Amended Charter will, among other things, change the name of the Purchaser effective as of the Closing to “Greenland Technologies Holding Corporation”, (iii) adoption and approval of the Amended new omnibus equity incentive plan, the form of which is attached as Exhibit E hereto (the “Incentive Plan”), that provides for the grant of awards to employees and other certain Representatives of the Purchaser Certificate and its Subsidiaries in the form of Incorporation options, restricted shares, restricted share units or other equity-based awards based on Purchaser Ordinary Shares with a total pool of awards of Purchaser Ordinary Shares equal to in part increase ten percent (10%) of the authorized capital stock aggregate number of Purchaser Ordinary Shares issued and outstanding immediately after the Closing, (iv) to appoint, and designate the classes of, the members of the board of directors of the Purchaser; , and appoint the members of any committees thereof, in each case in accordance with Section 6.16 hereof, (iiiv) such to obtain any and all other matters as the Seller and the Purchaser shall hereafter mutually determine to be approvals necessary or appropriate in order advisable to effect the Merger and consummation of the other transactions contemplated by this Agreement and the Ancillary Documents (the approvals described in the foregoing clauses (i), (ii), (iv) through and (iiiv), collectively, the “Purchaser Stockholder Shareholder Approval Matters”); , and (ivvi) the adjournment of the Purchaser Special Shareholder Meeting, if necessary or desirable appropriate in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser will also file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation rules set forth in the Purchaser’s Organizational Documents Documents, the BVI Act and the rules and regulations of the SEC and NasdaqNasdaq (such Proxy Statement and the documents included or referred to therein pursuant to which the Redemption will be made, together with any additional soliciting materials, supplements, amendments and/or exhibits thereto, the “Proxy Documents”).
(b) Except with respect to the information provided by or on behalf of the Target Companies or the Seller for inclusion in the Proxy Statement and other Proxy Documents, the Purchaser shall ensure that, when filed, the Proxy Statement and other Proxy Documents will comply in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. The Purchaser shall cooperate cause the Proxy Documents to be disseminated as promptly as practicable after receiving clearance from the SEC to the Purchaser’s equity holders as and provide to the extent such dissemination is required by U.S. federal securities laws and the rules and regulations of the SEC and Nasdaq promulgated thereunder or otherwise (the “Federal Securities Laws”). The Company and the Seller (and its counsel) with sufficient opportunity shall promptly provide to review and comment on the Proxy Statement and any amendment or supplement thereto prior to filing the same with the SEC. The Seller shall provide the Purchaser with such information concerning the Seller, the Target Entities Companies and their stockholdersrespective businesses, officers, directors, employees, assets, Liabilitiesoperations, condition (financial or otherwise), business assets, Liabilities, properties, officers, directors and operations that may be employees as is either required by Federal Securities Laws or appropriate reasonably requested by the Purchaser for inclusion in the Proxy StatementDocuments. Subject to compliance by the Company and the Seller with the immediately preceding sentence with respect to the information provided or to be provided by or on behalf of them for inclusion in the Proxy Documents, or the Purchaser shall cause the Proxy Documents to comply in all material respects with the Federal Securities Laws. The Purchaser shall provide copies of the proposed forms of the Proxy Documents (including, in each case, any amendments or supplements thereto.
(b) to the Company such that the Company and its Representatives are afforded a reasonable amount of time prior to the dissemination or filing thereof to review such material and comment thereon prior to such dissemination or filing, and the Purchaser shall reasonably consider in good faith any comments of the Company and its Representatives. The Purchaser and the Company and their respective Representatives shall respond promptly to any comments of the SEC or its staff with respect to the Redemption or the Proxy Documents and promptly correct any information provided by it for use in the Proxy Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by the Federal Securities Laws. The Purchaser shall use its best efforts take any amend or supplement the Proxy Documents and all reasonable and necessary actions required cause the Proxy Documents, as so amended or supplemented, to satisfy the requirements of the Exchange Act and other applicable Laws in connection be filed with the Proxy Statement SEC and to be disseminated to the holders of Purchaser Ordinary Shares, in each case as and to the extent required by the Federal Securities Laws and subject to the terms and conditions of this Agreement and the Purchaser Special MeetingOrganizational Documents. Each The Purchaser shall provide the Company and its Representatives with copies of any written comments, and shall inform them of any material oral comments, that the Purchaser or any of its Representatives receive from the SEC or its staff with respect to the Redemption or the Proxy Documents promptly after the receipt of such comments and shall give the Company a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments. The Company and the Seller shall, and shall cause each of its Subsidiaries the Target Companies to, make their respective directors, officers and employees, upon reasonable advance notice, available to the Seller, the Purchaser and, after the Closing, the Purchaser Representative, and their respective its Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy StatementDocuments, and responding in a timely manner to comments from the SEC. Each Party shall As promptly correct any information provided by it for use in as reasonably practicable after the Proxy Statement (and other related materials) if and to has “cleared” comments from the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The SEC, the Purchaser shall amend or supplement cause the definitive Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and disseminated to the holders of Purchaser Ordinary Shares, and shall duly call, give notice of, convene and hold the Shareholder Meeting.
(c) If at any time prior to the Closing, any information relating to the Purchaser, on the one hand, or any of the Target Companies or Seller, on the other hand, or any of their respective Affiliates, businesses, operations, condition (financial or otherwise), assets, Liabilities, properties, officers, directors or employees, should be discovered by the Purchaser, on the one hand, or any of the Target Companies or Seller, on the other hand, that should be set forth in an amendment or supplement to the Proxy Documents, so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify each other Party and shall cooperate with the other Parties to ensure that an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the Purchaser’s stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documentsshareholders.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effective. The Purchaser shall provide the Seller with copies of any written comments, and shall inform the Seller of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting promptly after the receipt of such comments and shall give the Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” of comments on the Proxy Statement.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f).
Appears in 1 contract
Samples: Share Exchange Agreement (Greenland Acquisition Corp.)
The Proxy Statement. (a) On or prior to December 31, 2022As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the SellerCompany, and file with the SEC a Proxy Statement proxy statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special MeetingMeeting and providing the Public Stockholders an opportunity in accordance with the Purchaser’s Organizational Documents and the IPO Prospectus to have their shares of Purchaser Class A Common Stock redeemed (the “Redemption”) in conjunction with the stockholder vote on the Purchaser Stockholder Approval Matters. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote, at a special meeting of the Purchaser’s Purchaser stockholders to be called and held for such purpose (the “Purchaser Special Meeting”), in favor of resolutions approving (i) the adoption and approval of this Agreement, Agreement and the transactions contemplated hereby or referred to herein, including the MergerMerger (and to the extent required, the issuance of any shares in connection with a PIPE Investment), by the holders of shares of Purchaser Common Stock in accordance with the Purchaser’s Organizational Documents, the DCGL and the rules and regulations of the SEC and Nasdaq and Nasdaq, (ii) the adoption and approval of the Amended Purchaser and Restated Certificate of Incorporation in form and substance reasonably acceptable to in part increase the authorized capital stock Company and the Purchaser, including the change of the name of the Purchaser; provided, that if the Amended Company Charter and the Class B Share Exchange are not agreed to by the Company Special Committee or not approved by the High Vote Company Stockholder Approval, the Amended Purchaser Charter will not include any provisions regarding the Purchaser Class B Common Stock and will only provide for a single class of common stock, (iii) adoption and approval of a new equity incentive plan in form and substance reasonably acceptable to the Purchaser and the Company (the “Incentive Plan”), and which will provide for awards for a number of shares of Purchaser Common Stock equal to ten percent (10%) of the aggregate number of shares of Purchaser Common Stock issued and outstanding immediately after the Closing (giving effect to the Redemption), which Incentive Plan shall have an annual “evergreen” increase as of January 1 of each calendar year, beginning with January 1, 2024 and continuing until (and including January 1, 2033, with such annual increase not to exceed two (2%) of the aggregate number of shares of Purchaser Common Stock issued and outstanding as of the end of the day immediate prior to such increase, (iv) the appointment of the members of the Post-Closing Purchaser Board in accordance with Section 5.17 hereof, (v) such other matters as the Seller Company and the Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (iiiv), collectively, the “Purchaser Stockholder Approval Matters”); , and (ivvi) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation and registration statement rules set forth in the Purchaser’s Organizational Documents Documents, the DGCL and the rules and regulations of the SEC and Nasdaq. The Purchaser shall cooperate and provide the Seller Company (and its counsel) with sufficient a reasonable opportunity to review and comment on the Proxy Statement and any amendment or supplement thereto prior to filing the same with the SEC. The Seller Company shall provide the Purchaser with such information concerning the Target Entities Company and their stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto, which information provided by the Company shall be true and correct and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.
(b) The Purchaser shall use its best efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange Act and other applicable Laws in connection with the Proxy Statement and Statement, the Purchaser Special MeetingMeeting and the Redemption. Each of the Purchaser and the Seller Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the SellerCompany, the Purchaser and, after the Closing, the Purchaser Representative, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s Purchaser stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effective. The Purchaser shall provide the Seller Company with copies of any written comments, and shall inform the Seller Company of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting and the Redemption promptly after the receipt of such comments and shall give the Seller Company a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the definitive Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call duly call, give notice of, convene and hold the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” of comments on the Proxy StatementDGCL.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser Meeting and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f)Redemption.
Appears in 1 contract
The Proxy Statement. (a) On or prior to December 31, 2022As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the Company, the Seller, and the Seller Parent, and file with the SEC SEC, a proxy statement on Schedule 14A (as amended or supplemented from time to time, and including the Proxy Statement (as amendedcontained therein, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders Stockholders for the matters to be acted upon at the Purchaser Special MeetingMeeting and providing the Public Stockholders an opportunity in accordance with the Purchaser’s Organizational Documents and the IPO Prospectus to have their shares of Purchaser Common Stock redeemed (the “Redemption”) in conjunction with the stockholder vote on the Purchaser Stockholder Approval Matters. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders Stockholders to vote, at a special meeting of the Purchaser’s stockholders Purchaser Stockholders to be called and held for such purpose (the “Purchaser Special Meeting”), in favor of resolutions approving (i) the adoption and approval of this Agreement, Agreement and the transactions contemplated hereby or referred to herein, including the MergerPurchase (and, to the extent required, the issuance of shares in connection with the PIPE Investment), by the holders of Purchaser Common Stock shares of the Purchaser’s capital stock entitled to vote thereon in accordance with the Purchaser’s Organizational Documents, the DCGL and the rules and regulations of the SEC and Nasdaq and Nasdaq, (ii) the adoption and approval of the Amended Purchaser Certificate Charter, (iii) the adoption and approval of Incorporation a new equity incentive plan in substantially the form attached as Exhibit G hereto (the “Incentive Plan”), and which will provide for awards for a number of shares of Purchaser Common Stock equal to in part increase the authorized capital stock fifteen percent (15.0%) of the Purchaser; aggregate number of shares of Purchaser Common Stock issued and outstanding immediately after the Closing (iiigiving effect to the Redemption), (iv) the election of the members of the Post-Closing Purchaser Board whose terms will expire in 2022, in accordance with Section 4.17 hereof, (v) such other matters as the Seller Company, the Seller, and the Seller Parent and Purchaser shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger Purchase and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (iiiv), collectively, the “Purchaser Stockholder Approval Matters”); , and (ivvi) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special Meeting. In connection with the Proxy Statement, the Purchaser will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation and registration statement rules set forth in the Purchaser’s Organizational Documents Documents, the DGCL and the rules and regulations of the SEC and Nasdaq. The Purchaser shall cooperate and provide the Seller (and its counsel) with sufficient a reasonable opportunity to review and comment on the Proxy Statement and any amendment or supplement thereto prior to filing the same with the SEC. The Company, the Seller, and the Seller Parent shall provide the Purchaser with such information concerning the Target Entities Company and their stockholdersits members, managers, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Proxy Statement, or in any amendments or supplements thereto, which information provided by the Company, the Seller, and the Seller Parent shall be true and correct and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.
(b) The Purchaser shall use its best efforts take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange Act and other applicable Laws in connection with the Proxy Statement and Statement, the Purchaser Special MeetingMeeting and the Redemption. Each of the Purchaser and the Company, the Seller, and the Seller Parent shall, and shall cause each of its Subsidiaries to, make their respective directors, managers, officers and employees, upon reasonable advance notice, available to the Company, the Seller, and the Seller Parent, Purchaser and, after the Closing, and the Purchaser Representative, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the Purchaser’s stockholdersPurchaser Stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effectiveSEC. The Purchaser shall provide the Seller with copies of any written comments, and shall inform the Seller of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting and the Redemption promptly after the receipt of such comments and shall give the Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effectiveSEC, the Purchaser shall distribute the Proxy Statement to the Purchaser’s stockholdersstockholders and the Seller, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” effectiveness of comments on the Proxy Statement.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser Meeting and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f)Redemption.
Appears in 1 contract
Samples: Unit Purchase Agreement (Northern Lights Acquisition Corp.)
The Proxy Statement. (a) On or prior to December 31, 2022As promptly as practicable after the date hereof, the Purchaser shall prepare with the reasonable assistance of the Seller, and file with the SEC a Proxy Statement proxy statement (as amendedamended or supplemented from time to time, the “Proxy Statement”) for the purpose of soliciting proxies from Purchaser stockholders for the matters to be acted upon at the Purchaser Special Meeting. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to vote), at calling a special meeting of the Purchaser’s stockholders to be called and held for such purpose shareholders (the “Purchaser Special Shareholder Meeting”), in favor ) seeking the approval of resolutions approving the Purchaser’s shareholders for (i) the adoption and approval of transactions contemplated by this Agreement, and the transactions contemplated hereby or referred to herein, including the Merger, by the holders of Purchaser Common Stock in accordance with and as required by the Purchaser’s Organizational Documents, the DCGL applicable Law and the any applicable rules and regulations of the SEC and Nasdaq and (ii) the Spin-Off Transaction, and file the Proxy Statement with the SEC on a Current Report on Form 6-K. In the Proxy Statement, the Purchaser shall seek (i) adoption and approval of this Agreement and the transactions contemplated hereby or referred to herein by the holders of Purchaser Shares in accordance with the Purchaser’s Organizational Documents, the California Code, and applicable rules and regulations of the SEC and Nasdaq, (ii) adoption and approval of the Spin-Off Transaction in accordance with the Purchaser’s Organizational Documents, the California Code, and applicable rules and regulations of the SEC and Nasdaq, (iii) if required to be approved by the Purchaser’s shareholders, adoption and approval of an Amended Purchaser Certificate and Restated Articles of Incorporation of the Purchaser in form and substance reasonably acceptable to in part increase the authorized capital stock Purchaser and the Company (the “Amended Charter”) (which Amended Charter, if appropriate as determined by the Purchaser, will be adopted by the Purchaser at the time of the Closing to, among other things, change the name of the Purchaser effective as of the Closing to “San Meditech Holdings Ltd.”), (iv) to appoint the members of the board of directors of the Purchaser; , and appoint the members of any committees thereof, in each case in accordance with Section 7.16 hereof, and (iiiv) such to obtain any and all other matters as the Seller and the Purchaser shall hereafter mutually determine to be approvals necessary or appropriate in order advisable to effect the Merger and consummation of the other transactions contemplated by this Agreement (and the approvals described in foregoing clauses (i) through (iii), collectively, Ancillary Documents and by the “Purchaser Stockholder Approval Matters”); and (iv) the adjournment of the Purchaser Special Meeting, if necessary or desirable in the reasonable determination of the Purchaser. If on the date for which the Purchaser Special Meeting is scheduled, the Purchaser has not received proxies representing a sufficient number of shares to obtain the Required Purchaser Stockholder Approval, whether or not a quorum is present, the Purchaser may make one or more successive postponements or adjournments of the Purchaser Special MeetingSpin-Off Agreements. In connection with the Proxy Statement, the Purchaser will also file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation rules set forth in the Purchaser’s Organizational Documents Documents, the California Code and the applicable rules and regulations of the SEC and Nasdaq. The Purchaser shall cooperate Nasdaq (such Proxy Statement and provide the Seller documents included or referred to therein, together with any supplements, amendments and/or exhibits thereto, the “Proxy Documents”).
(and its counselb) Except with sufficient opportunity respect to review and comment the information provided by or on behalf of the Target Companies or the Sellers for inclusion in the Proxy Statement and any amendment or supplement thereto prior to filing other Proxy Documents, the same Purchaser shall ensure that, when filed, the Proxy Statement and other Proxy Documents will comply in all material respects with the SECrequirements of the Exchange Act and the rules and regulations thereunder. The Seller Company and the Sellers shall promptly provide to the Purchaser with such information concerning the Sellers, the Target Entities Companies and their stockholdersrespective businesses, officers, directors, employees, assets, Liabilitiesoperations, condition (financial or otherwise), business assets, Liabilities, properties, officers, directors and operations that may be required or appropriate employees as is reasonably requested by the Purchaser for inclusion in the Proxy Statement, or in Documents. The Purchaser shall provide copies of the proposed forms of the Proxy Documents (including any amendments or supplements thereto.
(b) to Company such that the Company and its Representatives are afforded a reasonable amount of time prior to the dissemination or filing thereof to review such material and comment thereon prior to such dissemination or filing, and the Purchaser shall reasonably consider in good faith any comments of such Persons. The Purchaser shall use provide the Company and its best efforts take Representatives with copies of any written comments, and all reasonable and necessary actions required shall inform them of any material oral comments, that the Purchaser or any of its Representatives receive from the SEC or its staff with respect to satisfy the requirements of the Exchange Act and other applicable Laws in connection with the Proxy Statement Documents promptly after the receipt of such comments and shall give the Company a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments. The Company and the Purchaser Special Meeting. Each of the Purchaser and the Seller Sellers shall, and shall cause each of its Subsidiaries the Target Companies to, make their respective directors, officers and employees, upon reasonable advance notice, available to the Seller, the Purchaser and, after the Closing, the Purchaser Representative, and their respective its Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy StatementDocuments, and responding in a timely manner to comments from the SEC. Each Party The Purchaser shall call the Shareholder Meeting as promptly correct any information provided by it for use in as reasonably practicable after the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be has been filed with the SEC on a Current Report on Form 6-K.
(c) If at any time prior to the Closing, any information relating to the Purchaser, on the one hand, or the Company, its Subsidiaries or the Sellers, on the other hand, or any of their respective Affiliates, businesses, operations, condition (financial or otherwise), assets, Liabilities, properties, officers, directors or employees, should be discovered by the Purchaser, on the one hand, or the Target Companies or the Sellers, on the other hand, that should be set forth in an amendment or supplement to the Proxy Documents, so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify each other Parties and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to be the extent required by law, disseminated to the Purchaser’s stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documentsshareholders.
(c) The Purchaser, with the assistance of the other Parties, shall use its commercially reasonable best efforts to promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to “clear” comments from the SEC and become effective. The Purchaser shall provide the Seller with copies of any written comments, and shall inform the Seller of any material oral comments, that the Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting promptly after the receipt of such comments and shall give the Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the Proxy Statement to the Purchaser’s stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the DGCL for a date no later than thirty (30) days following the “clearing” of comments on the Proxy Statement.
(e) The Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting.
(f) If (i) the Purchaser or its counsel fail to respond to SEC comments related to the Proxy Statement within five (5) Business Days following receipt all required documentation required from third parties, including, but not limited to the Seller, auditors of each of the Purchaser and the Seller and any other third party advisors of the Purchaser and the Seller, (ii) the Purchaser does not cause the Proxy Statement to be mailed to its stockholders within ten (10) days following SEC clearance, or (iii) a quorate meeting of the Purchaser’s stockholders is not duly convened for the purpose of obtaining the Conversion Approvals within forty (40) days following the mailing of the Proxy Statement to the Purchaser’s stockholders, then unless prohibited by Delaware law governing distributions to stockholders, all issued and outstanding shares of Series A Preferred Stock and Series B Preferred Stock shall be immediately and automatically redeemed by the Corporation, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock and Series B Preferred Stock, for $1.00 in cash (with any accrued but unpaid dividends being extinguished) and Delaware Sub shall issue to the Seller a number of shares of its common stock so that the Seller shall own 93.3% of Delaware Sub following such issuance and the Purchaser shall own 6.7% of Delaware Sub. Notwithstanding anything to the contrary herein, if the occurrence of the events described herein are due to the failure of the Seller or its Representatives to provide to the Purchaser or its Representatives on a reasonably timely basis any information, document or statement reasonably requested or required by the Purchaser in connection therewith, the Series A Preferred Stock and Series B Preferred Stock shall not be redeemed nor shall the shares of Delaware Sub be issued pursuant to this Section 5.12(f).
Appears in 1 contract
Samples: Share Exchange Agreement (Ossen Innovation Co. Ltd.)
