Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement; Stockholders Meeting. (a) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective. (b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company. (c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document. (d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation. (e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 4 contracts
Sources: Merger Agreement (Mafco Holdings Inc), Agreement and Plan of Merger (Golden State Bancorp Inc), Merger Agreement (Ford Gerald J)
Additional Agreements. SECTION 5.1 6.01. Preparation of the Form S-4, S-4 and the Proxy Statement; Stockholders MeetingMeetings.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Proxy Statement in preliminary form and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus, and each of the Company and Parent shall use its reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. The Company and Parent shall each give the other party an opportunity to review, comment on and make reasonable changes to the Proxy Statement and the Form S-4, respectively. Each of Parent and the Company and Parent shall use all its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the Company's stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any reasonable action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Stock Plans and the Company shall furnish all information concerning the Company and the holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger.
(b) If at any time prior to the Effective Time any event with respect to the Company or any Company Subsidiary, or with respect to other information supplied by the Company for inclusion in the Proxy Statement or the Form S-4 shall occur which is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Form S-4, the Company will promptly notify Parent of such event, and the Company shall cooperate with Parent in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement and the Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to the stockholders of the Company.
(c) If at any time prior to the Effective Time any event with respect to Parent or any Parent Subsidiary, or with respect to other information supplied by the Parent for inclusion in the Proxy Statement or the Form S-4 shall occur which is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Form S-4, Parent will promptly notify the Company of such event, and Parent shall cooperate with Company in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement and the Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to the stockholders of the Company.
(d) The Company shall, as soon as practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting in accordance with the DGCL Meeting") for the purpose of obtaining seeking the Company Stockholder Approval Approval. The Company shall consult with Parent in determining a date for such meeting that is reasonably acceptable to Parent and subject to Section 4.3the Company. The Company shall, the Board of Directors of through the Company shall Board, recommend to its stockholders that they give the Company's stockholders Company Stockholder Approval, except to the extent that the Company Board shall have withdrawn or modified its approval and adoption or recommendation of this Agreement, Agreement or the Merger and the other transactions contemplated hereby (the "Company Recommendation"as permitted by Section 5.02(b). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate instruct Deloitte & Touche LLP, the Company's independent public accountants, to deliver to Parent a letter dated a date within two business days before the date on which the Form S-4 shall become effective and cooperate addressed to Parent, the form and substance of which shall be negotiated between Parent and Deloitte & Touche LLP (with Parent the intent that such letter should be customary in scope and substance for letters delivered by such accounting firm in connection with respect registration statements similar to the timing of Form S-4).
(f) Parent shall instruct KPMG Peat Marwick LLP, Parent's independent public accountants, to deliver to the Company Stockholders Meetinga letter dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to the Company, the form and substance of which shall be negotiated among the Company, Parent and KPMG Peat Marwick LLP (with the intent that such letter should be customary in scope and substance for letters delivered by such accounting firm in connection with registration statements similar to the Form S-4).
Appears in 4 contracts
Sources: Merger Agreement (Genovese Drug Stores Inc), Merger Agreement (Penney J C Co Inc), Merger Agreement (Penney J C Co Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, S-4 and the Joint Proxy Statement; Stockholders MeetingStockholders' Meetings.
(a) As promptly soon as practicable following the date of this Agreement, Parent Phone and ▇▇▇▇▇▇▇▇.▇▇▇ shall prepare and file with the Company SEC the Joint Proxy Statement, and Phone shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Parent Phone and the Company ▇▇▇▇▇▇▇▇.▇▇▇ shall use all commercially reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall Phone will use commercially reasonable best efforts to cause the Joint Proxy Statement to be mailed to holders of Company Common Stock Phone's stockholders, and ▇▇▇▇▇▇▇▇.▇▇▇ will use commercially reasonable efforts to cause the Joint Proxy Statement to be mailed to ▇▇▇▇▇▇▇▇.▇▇▇'s stockholders, in each case as promptly as practicable after the Form S-4 is declared effectiveeffective under the Securities Act. Phone shall also take any action required to be taken under any applicable state securities laws in connection with the issuance of shares of Phone Common Stock in the Merger and the conversion of ▇▇▇▇▇▇▇▇.
(b) ▇▇▇ Options into options to acquire Phone Common Stock, and ▇▇▇▇▇▇▇▇.▇▇▇ shall furnish all information concerning ▇▇▇▇▇▇▇▇.▇▇▇ and the holders of ▇▇▇▇▇▇▇▇.▇▇▇ Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 or the Joint Proxy Statement will be made by Phone without ▇▇▇▇▇▇▇▇.▇▇▇'s prior consent and without providing ▇▇▇▇▇▇▇▇.▇▇▇ the opportunity to review and comment thereon. Phone will advise ▇▇▇▇▇▇▇▇.▇▇▇ promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Phone Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time there shall occur (i) any event with respect information relating to the Company Phone or ▇▇▇▇▇▇▇▇.▇▇▇, or any of its subsidiariestheir respective affiliates, officers or with respect directors, should be discovered by Phone or ▇▇▇▇▇▇▇▇.▇▇▇ which should be set forth in an amendment or supplement to other information supplied by Company for inclusion in any of the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Joint Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in either caselight of the circumstances under which they were made, not misleading, the party which event is required to be described in discovers such information shall promptly notify the other parties hereto and an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, as to the extent required by law, disseminated to the stockholders of CompanyPhone and ▇▇▇▇▇▇▇▇.▇▇▇.
(cb) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company Phone shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold a meeting of its stockholders (the Company Stockholders Meeting "Phone Stockholders' Meeting") in accordance with the DGCL for the purpose of obtaining the Company Phone Stockholder Approval and shall, subject to the provisions of Section 4.34.2(b) hereof, the through its Board of Directors of the Company shall Directors, recommend to the Company's its stockholders the approval and adoption of this Agreement, the issuance of the shares of Phone Common Stock in the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationPhone Charter Amendment.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 4 contracts
Sources: Merger Agreement (Software Com Inc), Merger Agreement (Phone Com Inc), Merger Agreement (Phone Com Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement; Stockholders Meeting.
(a) As promptly as practicable following the date of this AgreementSubject to Section 5.10(b), Parent and the Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to take, or cause the Proxy Statement to be mailed taken, all actions necessary to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with consummate the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared make effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation")by this Agreement. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant but subject to the first sentence of Section 5.10(b), each party to this Section 5.1(dAgreement (i) shall not make all filings (if any) and give all notices (if any) required to be affected made and given by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change such party in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and connection with the Merger and nothing contained herein the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be deemed obtained (pursuant to relieve any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company of such obligationduring the Pre-Closing Period.
(eb) The Company shall coordinate and cooperate with Parent with respect Notwithstanding anything to the timing contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Company Stockholders MeetingAcquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 4 contracts
Sources: Merger Agreement (Lipson David S), Merger Agreement (Integrated Systems Consulting Group Inc), Merger Agreement (Safeguard Scientifics Inc Et Al)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement; Stockholders Meeting.
(a) As promptly as practicable following the date of this AgreementSubject to Section 5.6(b), Parent and the Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to take, or cause the Proxy Statement to be mailed taken, all actions necessary to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with consummate the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared make effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation")by this Agreement. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant but subject to the first sentence of Section 5.6(b), each party to this Section 5.1(dAgreement (i) shall not make all filings (if any) and give all notices (if any) required to be affected made and given by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change such party in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and connection with the Merger and nothing contained herein the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be deemed obtained (pursuant to relieve any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company of such obligationduring the Pre-Closing Period.
(eb) The Company shall coordinate and cooperate with Parent with respect Notwithstanding anything to the timing contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Company Stockholders Meeting.Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or
Appears in 4 contracts
Sources: Agreement and Plan of Merger and Reorganization (Arris Pharmaceutical Corp/De/), Merger Agreement (Sequana Therapeutics Inc), Merger Agreement (Sequana Therapeutics Inc)
Additional Agreements. SECTION 5.1 Preparation 5.01 Conduct of Business Prior to the Form S-4, Proxy Statement; Stockholders MeetingClosing.
(a) As promptly as practicable following Parent and Rodeo, Inc. covenant and agree that, between the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, Parent unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall prepare and file with the SEC the Form S-4be conducted only in, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company and the Company Subsidiaries shall use all reasonable efforts to have not take any action except in, the Form S-4 declared effective under ordinary course of business;
(ii) the Securities Act as promptly as practicable after such filing. The Company and the Company Subsidiaries shall use reasonable best efforts to cause preserve substantially intact their business organization, to keep available the Proxy Statement services of the current employees of Rodeo, Inc. and to be mailed preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to holders continue in force with good and responsible insurance companies adequate insurance covering risks of Company Common Stock such types and in such amounts as promptly as practicable after the Form S-4 is declared effectiveare consistent with past practice.
(b) If at any time By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the Effective Time there date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall occur not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any event with respect to Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of its subsidiariesany class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other information supplied ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company for inclusion Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the Form S-4 case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Proxy Statement Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) any event with respect currently contemplated to Parentbe conducted by the Company or (iii) ancillary to the Company's current business, or with respect commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to information supplied by Parent for inclusion become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment ofordinary course of business, or a supplementgrant any severance or termination pay to, to or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Form S-4 Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the Proxy Statementbenefit of any director, such event shall be so described, and such amendment officer or supplement shall be promptly filed with the SEC and, employee except as required by law, disseminated to the stockholders of Company.;
(cxii) Each change any method of accounting or accounting practice by the Company and Parent shall promptly notify or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other of the receipt of any comments arrangement that involves annual payments to or from the SEC Company or its staff Subsidiaries in excess of $25,000,000 singly or any $50,000,000 in the aggregate, other appropriate government official and than in the ordinary course of any requests by the SEC business or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or for additional information and shall supply the other with copies of all correspondence waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company or and/or any of its representatives, or Parent or any of its representatives, as the case may beCompany Subsidiary, on the one hand, and the SEC any of their respective officers, directors, unitholders, owners or its staff or any other appropriate government officialAffiliates, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect which if entered into prior to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide date hereof would be required to each other all information necessary in order be disclosed pursuant to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.Section 3.20;
(dxix) The Company shallmaterially alter (through merger, as promptly as practicable after liquidation, reorganization, restructuring, conversion or in any other fashion) the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors corporate structure or ownership of the Company shall recommend to the Company's stockholders the approval and adoption of or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality agreement, commitment or arrangement to do any of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 4 contracts
Sources: Unit Transfer and Contribution Agreement (Plains Resources Inc), Unit Transfer and Contribution Agreement (Plains Resources Inc), Unit Transfer and Contribution Agreement (Plains Resources Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement; Stockholders MeetingSection 7.1 Schedule 13E-3.
(a) As promptly soon as reasonably practicable following the date of this Agreementhereof but in any event within twenty (20) Business Days after the date hereof, the Company, Parent and the Company Merger Sub shall jointly prepare and file cause to be filed with the SEC a Rule 13e-3 transaction statement on Schedule 13E-3 (such Schedule 13E-3, as amended or supplemented, being referred to herein as the Form S-4, in which the Proxy Statement will be included as a prospectus“Schedule 13E-3”). Each of the Company, Parent and the Company Merger Sub shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its reasonable best efforts to cause ensure that the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion Schedule 13E-3 complies in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed all material respects with the SEC and, as required by law, disseminated to requirements of the stockholders of Company.
(c) Exchange Act and the rules and regulations promulgated thereunder. Each of the Company Company, Parent and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent Sub shall use their respective its reasonable best efforts to respond promptly to any comments of the SEC with respect to the Form S-4 Schedule 13E-3. Each of Parent and Merger Sub shall provide reasonable assistance and cooperation to the Company in the preparation, filing, and mailing/distribution of the Schedule 13E-3 and the Proxy Statement as resolution of comments from the SEC. Upon its receipt of any comments from the staff of the SEC or any request from the SEC or its staff for amendments or supplements to the Schedule 13E-3, the Company shall promptly as practicable. The notify Parent and Merger Sub, and shall provide Parent with copies of all correspondence between the Company and its representatives, on the one hand, and the staff of the SEC, on the other hand. Prior to filing the Schedule 13E-3 (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent and Merger Sub with a reasonable opportunity to review and comment on such document or response; and (ii) shall cooperate consider in good faith all additions, deletions or changes reasonably proposed by Parent in good faith, provided, however, that nothing in this Section 7.1 shall limit or preclude the Board or the Special Committee from effecting a Change in Company Recommendation. Notwithstanding anything herein to the contrary, and subject to compliance with each other the terms of Section 6.2(e), in connection with any disclosure regarding a Change in Company Recommendation, the Company shall not be required to provide Parent or Merger Sub with the opportunity to review or comment on (or include comments proposed by Parent or Merger Sub in) the Schedule 13E-3 or any amendment or supplement thereto, or any comments thereon or another filing by the Company with the SEC, with respect to such disclosure.
(b) Each of the Company, Parent and provide to each other Merger Sub shall promptly furnish all information concerning such party to the others as may be reasonably requested in connection with the preparation, filing, and mailing/distribution of the Schedule 13E-3 or any other documents filed or to be filed with the SEC in connection with the Transactions. Each of Parent, Merger Sub and the Company agrees, as to itself and its respective Affiliates or Representatives, that none of the information supplied or to be supplied by Parent, Merger Sub or the Company, as applicable, expressly for inclusion or incorporation by reference in the Schedule 13E-3 or any other documents filed or to be filed with the SEC in connection with the Transactions, will, as of the time such documents (or any amendment thereof or supplement thereto) are mailed to the shareholders of the Company, contain any untrue statement of a material fact, or omit to state a material fact required to be made therein, or necessary in order to prepare make the Form S-4 statements made, in the light of the circumstances under which they were made, not misleading. Each of Parent, Merger Sub and the Proxy Statement, and shall provide promptly to the other party any information Company further agrees that all documents that such party may obtain that could necessitate amending any such document.
(d) The Company shall, is responsible for filing with the SEC in connection with the Merger will comply as promptly as practicable after to form and substance in all material respects with the Form S-4 is declared effective under applicable requirements of the Securities Act, duly callthe Exchange Act, give notice ofand any other applicable Laws and that all information supplied by such party for inclusion or incorporation by reference in such document will not contain any untrue statement of a material fact, convene or omit to state a material fact required to be made therein, or necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. If at any time prior to the Effective Time, any event or circumstance relating to Parent, Merger Sub or the Company, or their respective Affiliates, officers or directors, should be discovered that should be set forth in an amendment or a supplement to the Schedule 13E-3 so that such document would not include any misstatement of a material fact or omit to state a material fact required to be made therein, or necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, the party discovering such event or circumstance shall promptly inform the other parties and hold the Company Stockholders Meeting in accordance an appropriate amendment or supplement describing such event or circumstance shall be promptly filed with the DGCL for SEC and disseminated to the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors shareholders of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoingextent required by Law; provided that prior to such filing, the Company agrees and Parent, as the case may be, shall consult with each other with respect to such amendment or supplement and shall afford the other party and their Representatives a reasonable opportunity to comment thereon.
(c) As soon as reasonably practicable after the SEC staff confirms that its obligations pursuant to it has no further comments on the first sentence of this Section 5.1(d) shall not be affected by the commencementSchedule 13E-3, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders (i) establish a record date for determining shareholders of the Company at to whom the Company Stockholders Meeting for Schedule 13E-3 will be mailed or distributed (the purpose of approving “Record Date”) and shall not change such Record Date unless required to do so by applicable Law; (ii) mail or distribute or cause to be mailed or distributed the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect Schedule 13E-3 to the timing holders of Shares, including Shares represented by ADSs, as of the Company Stockholders MeetingRecord Date; and (iii) instruct the Depositary to (A) fix the Record Date as the record date for determining the holders of ADSs to whom the Schedule 13E-3 will be mailed/distributed (the “Record ADS Holders”) and (B) provide the Schedule 13E-3 to all Record ADS Holders.
Appears in 3 contracts
Sources: Merger Agreement (China Index Holdings LTD), Plan of Merger, Merger Agreement
Additional Agreements. SECTION 5.1 5.01. Preparation of the Form S-4, S-4 and the Joint Proxy Statement; Stockholders Meeting.
(a) . As promptly soon as practicable following the date of this Agreement, Parent and the Company and Parent shall prepare and file with the SEC the Joint Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Parent and the Company and Parent shall use all its commercially reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filingfiling and to keep the Form S-4 effective for so long as necessary to complete the Merger. The Company shall will use its commercially reasonable best efforts to cause the Joint Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior Company's stockholders and Parent will use its commercially reasonable efforts to cause the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Joint Proxy Statement or (ii) any event with respect to be mailed to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement's shareholders, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the each case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting . Parent shall also take any action (other than qualifying to do business in accordance any jurisdiction in which it is not now so qualified or filing a general consent to service of process) reasonably required to be taken under any applicable state securities laws in connection with the DGCL for issuance of Parent Common Stock in the purpose of obtaining the Company Stockholder Approval Merger, and subject to Section 4.3, the Board of Directors of the Company shall recommend furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested by Parent in connection with any such action and the preparation, filing and distribution of the Joint Proxy Statement and the Form S-4. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing, or amendment or supplement to, the Joint Proxy Statement will be made by Parent or the Company, in each case without providing the other party a reasonable opportunity to review and comment thereon. The parties shall notify each other promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Company's stockholders Joint Proxy Statement or the approval Form S-4 or for additional information, and adoption shall supply each other with copies of this Agreementall correspondence between it or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Joint Proxy Statement, the Form S-4, the Merger and or the other transactions contemplated hereby (by this Agreement or the "Company Recommendation")Voting Agreement. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant If at any time prior to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication Effective Time any information relating to the Company or Parent, or any of any Company Takeover Proposal. Notwithstanding any Change in their respective Affiliates, directors or officers, should be discovered by the Company Recommendationor Parent which should be set forth in an amendment or supplement to either of the Form S-4 or the Joint Proxy Statement, unless otherwise directed so that either of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in writing by Parentlight of the circumstances under which they were made, this Agreement not misleading, the party that discovers such information shall promptly notify the other parties hereto and the Merger an appropriate amendment or supplement describing such information shall be submitted promptly filed with the SEC and, to the extent required by law, disseminated to the shareholders of Parent and the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationCompany.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 3 contracts
Sources: Merger Agreement (Olin Corp), Merger Agreement (Citigroup Inc), Merger Agreement (Chase Industries Inc)
Additional Agreements. SECTION 5.1 Section 6.01 Preparation of the Form S-4, S-4 and the Joint Proxy Statement/Prospectus; Stockholders Meeting.
(a) As promptly soon as practicable following the date of this Agreement, but in any event within twenty (20) Business Days following the date of this Agreement (to the extent practicable), Parent and the Company shall jointly prepare and cause to be filed with the SEC the Joint Proxy Statement/Prospectus in preliminary form and Parent shall prepare (with the cooperation of the Company) and file with the SEC the Form S-4, in which the Joint Proxy Statement Statement/Prospectus will be included as a prospectus. Each , and each of the Company and Parent shall cooperate with each other and use reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto; provided, that consistent with the foregoing, Parent and the Company shall use all their good faith efforts to make the initial filing of the Form S-4 within ten (10) Business Days following the date of this Agreement, it being understood and agreed that the failure to make such filing within such ten (10) Business Day period shall not be deemed to be a breach of this Agreement for any purpose. Each of the Company and Parent shall cooperate with each other and use reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Each of the Company and Parent shall use reasonable best efforts to cause the Joint Proxy Statement Statement/Prospectus to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the Company’s stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, Parent’s stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Plans and the Company shall furnish all information concerning the Company and the holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Joint Proxy Statement/Prospectus or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such party or any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Joint Proxy Statement/Prospectus, the Form S-4 or the Merger. Each party shall give each other party an opportunity to participate in any discussions or meetings such party has with the SEC in connection with the Joint Proxy Statement/Prospectus, the Form S-4 or the Merger. Notwithstanding the foregoing, before filing the Form S-4 (or any amendment or supplement thereto) or mailing the Joint Proxy Statement/Prospectus (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each of Parent and the Company (i) shall provide the other a reasonable opportunity to review and comment on such document or response (including the proposed final version of such document or response), (ii) shall include in such document or response all comments reasonably proposed by the other and (iii) shall not file or mail such document or respond to the SEC prior to receiving the approval of the other (such approval not to be unreasonably withheld, conditioned or delayed). Each of Parent and the Company shall advise the other, promptly after receipt of notice thereof, of the time of effectiveness of the Form S-4, the issuance of any stop order relating thereto or the suspension of the qualification of the Parent Common Stock included in the Merger Consideration for offering or sale in any jurisdiction, and each of Parent and the Company shall use all reasonable efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. Each of Parent and the Company shall also take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or “blue sky” laws and the rules and regulations thereunder in connection with the Merger and the Share Issuance.
(b) If before the Effective Time, any event occurs with respect to the Company, or any change occurs with respect to other information supplied by the Company for inclusion in the Joint Proxy Statement/Prospectus or the Form S-4, which is required to be described in an amendment of, or a supplement to, the Joint Proxy Statement/Prospectus or the Form S-4, the Company shall promptly notify Parent of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement/Prospectus and Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to the Company’s stockholders.
(c) If before the Effective Time, any event occurs with respect to Parent or any Parent Subsidiary, or change occurs with respect to other information supplied by Parent for inclusion in the Joint Proxy Statement/Prospectus or the Form S-4, which is required to be described in an amendment of, or a supplement to, the Joint Proxy Statement/Prospectus or the Form S-4, Parent shall promptly notify the Company of such event, and Parent and the Company shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 and, as required by Law, in disseminating the information contained in such amendment or supplement to the Company’s stockholders.
(d) The Company shall, as soon as practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its shareholders (including any adjournment, postponement or other delay thereof, the “Company Stockholders Meeting in accordance with the DGCL Meeting”) for the purpose of obtaining of, among other things, seeking the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Approval. The Company shall recommend use reasonable best efforts to: (x) cause the Joint Proxy Statement/Prospectus to be mailed to the Company's stockholders ’s shareholders as promptly as practicable after the approval and Form S-4 is declared effective under the Securities Act; (y) solicit from the holders of Company Common Stock proxies in favor of the adoption of this Agreement, Agreement and approval of the Merger Merger; and (z) take all other actions necessary or advisable to secure the other transactions contemplated hereby (vote or consent of the "holders of Company Recommendation")Common Stock required by applicable Law to obtain such approval. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d6.01(d) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in Proposal or (ii) the withdrawal or modification by the Company Recommendation, unless otherwise directed in writing by Parent, Board of its approval or recommendation of this Agreement or the Merger.
(e) Parent shall, as soon as practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its shareholders (including any adjournment, postponement or other delay thereof, the Merger “Parent Stockholders Meeting”) for the purpose of, among other things, seeking from the holders of Parent Common Stock proxies in favor of the approval of the Share Issuance. Parent shall use reasonable best efforts to: (x) cause the Joint Proxy Statement/Prospectus to be submitted mailed to Parent’s shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act; (y) solicit from the holders of Parent Common Stock proxies in favor of the Share Issuance; and (z) take all other actions necessary or advisable to secure the vote or consent of the holders of Parent Common Stock required by applicable Law to obtain such approval.
(f) Notwithstanding anything to the contrary in this Agreement, the Company will be permitted to postpone or adjourn the Company Stockholders Meeting if (i) there are holders of insufficient shares of the Company Common Stock present or represented by proxy at the Company Stockholders Meeting to constitute a quorum at the Company Stockholders Meeting; (ii) the Company is required to postpone or adjourn the Company Stockholders Meeting by applicable Law, order or a request from the SEC; or (iii) the Company Board (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that it is required by applicable Law to postpone or adjourn the Company Stockholders Meeting (including, if the Company Board (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that it is required by applicable Law) in order to give the stockholders of the Company sufficient time to evaluate any information or disclosure that the Company has sent to the stockholders of the Company at or otherwise made available to the stockholders of the Company Stockholders Meeting for by issuing a press release, filing materials with the purpose SEC or otherwise, in each case in accordance with the terms of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationthis Agreement.
(eg) The Company shall coordinate and cooperate with Parent with respect Notwithstanding anything to the timing contrary in this Agreement, Parent will be permitted to postpone or adjourn the Parent Stockholders Meeting if (i) there are holders of insufficient shares of the Company Parent Common Stock present or represented by proxy at the Parent Stockholders Meeting to constitute a quorum at the Parent Stockholders Meeting; (ii) Parent is required to postpone or adjourn the Parent Stockholders Meeting by applicable Law, order or a request from the SEC; or (iii) the Parent Board (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that it is required by applicable Law to postpone or adjourn the Parent Stockholders Meeting (including, if the Parent Board (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that it is required by applicable Law) in order to give the stockholders of Parent sufficient time to evaluate any information or disclosure that Parent has sent to the stockholders of Parent or otherwise made available to the stockholders of Parent by issuing a press release, filing materials with the SEC or otherwise, in each case in accordance with the terms of this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Applied Molecular Transport Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.)
Additional Agreements. SECTION 5.1 6.1 Preparation of the Form S-4, S-4 and the Proxy Statement; MSLO Stockholders Meeting.
(a) As promptly soon as practicable following the date of this Agreement, Parent Sequential and the Company MSLO shall prepare prepare, and Sequential shall cause TopCo to file with the SEC SEC, the Form S-4, in which including the related Proxy Statement will be included as a prospectusStatement/Prospectus and Information Statement. Each of Parent Sequential and the Company MSLO shall use all reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of Sequential and MSLO shall furnish all information concerning such Person and its Affiliates to the other, and provide such other assistance, as may be reasonably requested, in connection with the preparation, filing and distribution of the Form S-4, Proxy Statement/Prospectus and Information Statement. The Company Form S-4 and Proxy Statement/Prospectus shall include all information reasonably requested by such other party to be included therein. Each of Sequential and MSLO shall promptly notify the other upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Form S-4 or Proxy Statement/Prospectus and shall provide the other with copies of all correspondence between it and its Representatives, on one hand, and the SEC, on the other hand. Each of Sequential and MSLO shall use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock respond as promptly as practicable after to any comments from the SEC with respect to the Form S-4 is declared effective.
or Proxy Statement/Prospectus. Notwithstanding the foregoing, prior to filing the Form S-4 (bor any amendment or supplement thereto) or mailing the Proxy Statement/Prospectus (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each of Sequential and MSLO (i) shall provide the other an opportunity to review and comment on such document or response (including the proposed final version of such document or response) and (ii) shall include in such document or response all comments reasonably proposed by the other. Each of Sequential and MSLO shall advise the other, promptly after receipt of notice thereof, of the time of effectiveness of the Form S-4, the issuance of any stop order relating thereto or the suspension of the qualification of shares of TopCo Common Stock for offering or sale in any jurisdiction, and each of Sequential and MSLO shall use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. Sequential shall also cause TopCo to take any other action required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or “blue sky” laws and the rules and regulations thereunder in connection with the Mergers, the issuance of the Merger Consideration and the issuance of shares of TopCo Common Stock under the Sequential Benefit Plans. If at any time prior to the Effective Time there shall occur (i) any event with respect information relating to the Company Sequential, MSLO, TopCo, or any of its subsidiariestheir respective Affiliates, officers or with respect directors, should be discovered by Sequential, MSLO or TopCo that should be set forth in an amendment or supplement to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in of the Form S-4 or the Proxy Statement/Prospectus, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in either caselight of the circumstances under which they were made, not misleading, the party which event is required to be described in discovers such information shall promptly notify the other parties hereto and an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, as to the extent required by law, disseminated to the stockholders of CompanySequential and MSLO.
(cb) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent MSLO shall use their respective its reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shallto, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold a meeting of its stockholders (the Company “MSLO Stockholders Meeting Meeting”), and shall within five Business Days of the effectiveness of the Form S-4 publicly announce the date of the MSLO Stockholders Meeting, in accordance with the DGCL and MSLO’s certificate of incorporation and bylaws for the purpose of obtaining the Company MSLO Stockholder Approval and shall, subject to the provisions of Section 5.5, through its Board of Directors, recommend to its stockholders the adoption and approval of this Agreement. MSLO may only postpone or adjourn the MSLO Stockholders Meeting (i) to solicit additional proxies for the purpose of obtaining the MSLO Stockholder Approval, (ii) for the absence of a quorum, (iii) with the consent of Sequential or (iv) to allow reasonable additional time for the filing and/or mailing of any supplemental or amended disclosure that MSLO has determined after consultation with outside legal counsel is reasonably likely to be required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by stockholders of MSLO prior to the MSLO Stockholders Meeting. MSLO shall use its reasonable best efforts to (i) cause the Proxy Statement/Prospectus to be mailed to MSLO’s stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act and to hold the MSLO Stockholders Meeting as soon as practicable after the Form S-4 becomes effective and (ii) subject to the provisions of Section 5.5, solicit the MSLO Stockholder Approval. MSLO shall, through the MSLO Board, recommend to its stockholders that they vote in favor of the MSLO Merger and shall include such recommendation in the Proxy Statement/Prospectus, except to the extent that the MSLO Board shall have made an Adverse Recommendation Change as permitted by Section 5.5. MSLO agrees, subject to Section 4.35.5, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) 6.1 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company MSLO of any Company Takeover Acquisition Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 2 contracts
Sources: Merger Agreement (Martha Stewart Living Omnimedia Inc), Merger Agreement (Sequential Brands Group, Inc.)
Additional Agreements. SECTION 5.1 Section 6.1 Preparation of the Form S-4, Proxy Statement; Stockholders MeetingF-4 and Schedule 13E-3.
(a) As promptly as practicable following after the date execution of this Agreement, Parent shall, with the assistance of the Company, prepare and file with the SEC a registration statement on Form F-4 with respect to the Parent Shares to be issued with the Merger. Parent shall promptly respond to any comments made by the SEC regarding the Form F-4 and shall endeavor to have the Form F-4 declared effective under the Securities Act promptly after filing with the SEC and cause the Prospectus to be delivered to the shareholders or holders of Company ADSs. No filing of, or amendment or supplement to, the Form F-4 will be made by Parent without providing the Company a reasonable opportunity to review and comment thereon. Each Party shall, as promptly as practicable after the receipt thereof, provide to the other Party copies of any written comments and advise the other Party of any oral comments, with respect to the Form F-4 received from the staff of the SEC. The Company shall furnish as promptly as practicable such information concerning the Company reasonably requested in connection with the Form F-4 or other filings required under applicable Laws.
(b) Parent, Merger Sub and the Company shall prepare and file with the SEC the Form S-4Schedule 13E-3. Parent, in which the Proxy Statement will be included as a prospectus. Each of Parent Merger Sub and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy Statement Schedule 13E-3 to be mailed comply with the rules and regulations promulgated by the SEC and respond promptly to holders any comments of Company Common Stock the SEC regarding the Schedule 13E-3. Each Party shall, as promptly as practicable after the Form S-4 is declared effectivereceipt thereof, provide to the other Party copies of any written comments and advise the other Party of any oral comments, with respect to the Schedule 13E-3 received from the staff of the SEC. Each of Parent, Merger Sub and the Company will be provided with a reasonable opportunity to review and comment on the initial Schedule 13E-3 and any amendment or supplement thereto prior to filing with the SEC.
(bc) If at any time prior to the Effective Time there shall occur (i) Time, any event with respect information relating to the Company each Party or any of its subsidiariesAffiliates, directors or with respect to other information supplied officers should be discovered by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either casesuch Party, which event is required to should be described set forth in an amendment of, or a supplement, supplement to the Form S-4 F-4 or Schedule 13E-3 so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the Proxy Statementstatements therein, in light of the circumstances under which they are made, not misleading, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent Party shall promptly notify the other Party of such information and the receipt of any comments from other Party shall cooperate in the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings prompt filing with the SEC of any necessary amendment or supplement to the Form F-4 or Schedule 13E-3.
(d) Parent shall use reasonable efforts to cause any Parent ADSs to be issued in connection with the Merger and other transactions contemplated hereby or to be approved for additional information and shall supply the other with copies of all correspondence between the Company or any of its representativeslisting on The New York Stock Exchange, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts such listing to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and be subject to Section 4.3, the Board official notice of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationissuance.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 2 contracts
Sources: Merger Agreement (E-House (China) Holdings LTD), Merger Agreement (China Real Estate Information Corp)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement6.01. PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT; Stockholders MeetingSTOCKHOLDERS MEETINGS.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company and Parent shall prepare and file with the SEC a joint proxy statement (the "Joint Proxy Statement") in preliminary form and Parent shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus, and each of the Company and Parent shall use its reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Each of Parent and the Company and Parent shall use all its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Stock Plans and the Company shall use reasonable best efforts to cause furnish all information concerning the Proxy Statement to be mailed to Company and the holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly as practicable after of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Joint Proxy Statement or the Form S-4 is declared effectiveor for additional information and shall supply each other with copies of all correspondence between such or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Joint Proxy Statement, the Form S-4 or the Merger.
(b) If If, at any time prior to the Effective Time there shall occur (i) receipt of the Company Stockholder Approval or the Parent Stockholder Approval, any event occurs with respect to the Company or any of its subsidiariesCompany Subsidiary, or any change occurs with respect to other information supplied by the Company for inclusion in the Form S-4 or the Joint Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either caseS-4, which event is required to be described in an amendment of, or a supplementsupplement to, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.the
Appears in 2 contracts
Sources: Stockholders Agreement (Boyd Gaming Corp), Stockholders Agreement (Boyd Gaming Corp)
Additional Agreements. SECTION 5.1 Section 6.01 Preparation of the Form S-4, S-4 and the Proxy Statement; Company Stockholders Meeting.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Proxy Statement and Parent shall prepare and Parent shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company and Parent will respond promptly to any comments from the SEC or the staff of the SEC on the Proxy Statement or the Form S-4. Each of the Company and Parent shall use all its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filingfiling and maintain the Form S-4's effectiveness for so long as necessary to consummate the Merger. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities ActAct (but in no event later than three (3) business days after the date the Form S-4 is declared effective). Parent shall also take any action required to be taken under any applicable state securities Laws in connection with the issuance of shares of Parent Common Stock in the Merger, and the Company shall furnish all information concerning the Company and the holders of shares of Company Common Stock as may be reasonably requested by Parent in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to the Proxy Statement will be made by the Company, without providing the other party and its counsel a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, directors or officers, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and 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 stockholders of the Company. The parties shall notify each other promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of (i) all correspondence between it or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger and (ii) all orders of the SEC relating to the Form S-4.
(b) The Company shall, as soon as practicable following the date of this Agreement, establish a record date for and promptly take any and all actions in connection therewith, and as soon as practicable after the Form S-4 is declared effective, duly call, give notice of, convene and hold hold, a meeting of its stockholders (the "Company Stockholders Meeting in accordance with the DGCL Meeting") solely for the purpose of obtaining the Company Stockholder Approval and subject Approval. Subject to Section 4.35.02(b), the Board of Directors of Company shall, through the Company shall Board, recommend to the Company's its stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation")by this Agreement. Without limiting the generality of the foregoing, the Company agrees that its Company's obligations pursuant to the first sentence of this Section 5.1(d6.01(b) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding Proposal or (ii) any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationAdverse Recommendation Change.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 2 contracts
Sources: Merger Agreement (Unitedhealth Group Inc), Merger Agreement (Pacificare Health Systems Inc /De/)
Additional Agreements. SECTION 5.1 6.1 Preparation of S-4 and the Form S-4, Proxy Statement; Stockholders Meeting.
(a) As promptly as practicable following the date of this Agreement, . Parent and the Company shall will, as promptly as practicable, jointly prepare and file with the SEC the Form S-4Proxy Statement in connection with the vote of the stockholders of the Company in respect of the Merger. Parent will, in which as promptly as practicable, prepare, following receipt of notification from the SEC that it has no further comments on the Proxy Statement will be included as a prospectusStatement, and file with the SEC the S-4 in connection with the registration under the Securities Act of the shares of Parent Common Stock issuable upon conversion of the Shares and the other transactions contemplated hereby. Each of Parent and the Company shall will, and will cause their accountants and lawyers to, use all their reasonable best efforts to have or cause the Form S-4 to be declared effective under the Securities Act as promptly as practicable after filing with the SEC, including, causing their accountants to deliver necessary or required instruments such filingas opinions, consents and certificates, and will take any other action required or necessary to be taken under federal or state securities Laws or otherwise in connection with the registration process (other than qualifying to do business in any jurisdiction which it is not now so qualified or filing a general consent to service of process in any jurisdiction). The Company shall and Parent shall, as promptly as practicable after the receipt thereof, provide to the other party copies of any written comments and advise the other party of any oral comments, in respect of the Proxy Statement or the S-4 received from the staff of the SEC. The Company will provide Parent with a reasonable opportunity to review and comment on any amendment or supplement to the Proxy Statement prior to filing with the SEC and will provide Parent with a copy of all such filings with the SEC. Parent will provide the Company with a reasonable opportunity to review and comment on any amendment or supplement on the S-4 prior to filing with SEC and will provide the Company with a copy of all such filings with the SEC. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationearliest practicable date.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 2 contracts
Sources: Merger Agreement (Unitrode Corp), Merger Agreement (Texas Instruments Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Information Statement and Proxy Statement; Stockholders Meeting.. -----------------------------------------
(a) As promptly soon as practicable following after the date execution of this Agreement, Parent Company shall prepare, with the cooperation and reasonable assistance of Parent, and furnish to its shareholders an Information Statement for the shareholders of Company to approve and adopt this Agreement, the Merger and the Company other transactions contemplated by this Agreement. The Information Statement shall prepare constitute a disclosure document for the offer and file with issuance of the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each shares of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy Statement Common Stock to be mailed to received by the holders of Company Common Capital Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby a proxy statement for solicitation of shareholder consent to or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby hereby, and may be combined with the Proxy Statement as a joint proxy/information statement. Parent and Company shall each use its reasonable best efforts to cause the Information Statement to comply with applicable federal and state securities laws requirements. Each of Parent and Company agrees to provide promptly to the other such information concerning it and its respective affiliates, directors, officers and securityholders as, in the reasonable judgment of the other party or its counsel, may be required or appropriate for inclusion in the Information Statement, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Information Statement. Company will promptly advise Parent, and Parent will promptly advise Company, in writing if at any time prior to the Effective Time either Company or Parent shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Information Statement in order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable law. The Information Statement shall contain the recommendation of the Board of Directors of Company that Company shareholders approve and adopt this Agreement, the Merger and the other transactions contemplated by this Agreement, and the conclusion of the Board of Directors that the terms and conditions of the Merger are fair and reasonable and in the best interests of Company and its shareholders. Anything to the contrary contained herein notwithstanding, Company shall not include in the Information Statement any information with respect to Parent or its affiliates or associates, the form and content of which information shall not have been approved by Parent prior to such inclusion.
(b) As soon as practicable after the "execution of this Agreement, Parent shall prepare, with the cooperation of Company, and file with the SEC preliminary proxy materials relating to the Parent Stockholders Meeting and the vote of the stockholders of Parent on the issuance of the Merger Shares pursuant to this Agreement. Parent and Company Recommendation")shall each use its reasonable best efforts to cause the Proxy Statement to comply in all material respects with the Exchange Act and all other applicable federal and state securities law requirements. Each of Parent and Company shall, and shall cause its respective representatives to, fully cooperate with the other such party and its representatives in the preparation of the Proxy Statement, and shall promptly provide to the other such information concerning it and its respective affiliates, directors, officers and securityholders as the other may reasonably request in connection with the preparation of the Proxy Statement. If at any time prior to the Effective Time Company or Parent shall become aware of any fact, event or circumstance that is required to be set forth in an amendment or supplement to the Proxy Statement, such party shall promptly notify the other of such fact, event or circumstance and the other parties shall cooperate with each other in filing with the SEC or any other governmental official and mailing to Parent stockholders such amendment or supplement. The Proxy Statement shall contain the recommendation of the Board of Directors of Parent in favor of the Parent Stockholder Approval; provided, that the Board of Directors of Parent -------- shall have the right to omit, withdraw or modify such recommendation in the event that a Parent Superior Proposal has been made and Parent's Board of Directors has concluded in good faith, after considering applicable state law, on the basis of written advice of outside counsel, that inclusion of such recommendation would not be a proper exercise of the Parent's board of directors' fiduciary duties to Parent's stockholders under applicable law. Notwithstanding any such omission, withdrawal or modification, Parent shall convene and hold (and shall take all action otherwise required by this Agreement to convene and hold) the Parent Stockholders Meeting. Without limiting the generality of the foregoing, the Company agrees that Parent shall use its obligations pursuant reasonable best efforts to the first sentence of this Section 5.1(d) shall not be affected respond promptly to any comments made by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent SEC with respect to the timing Proxy Statement (including each preliminary version thereof) and to clear the Proxy Statement as promptly as practicable hereafter. As promptly as practicable after SEC clearance of the Proxy Statement, Parent shall file with the SEC the definitive Proxy Statement and mail or cause to be mailed the Proxy Statement to its stockholders.
(c) As soon as practicable after the execution of this Agreement, Parent shall prepare, with the cooperation of Company, the Permit Application. Parent and Company Stockholders Meetingshall each use commercially reasonable efforts to cause the Permit Application to comply with the requirements of applicable federal and state laws. Each of Parent and Company agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Permit Application, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Permit Application. Company will promptly advise Parent, and Parent will promptly advise Company, in writing if at any time prior to the Effective Time either Company or Parent shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Permit Application in order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable law.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Sandpiper Networks Inc), Agreement and Plan of Reorganization (Digital Island Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement6.01. PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT; Stockholders MeetingSTOCKHOLDERS MEETINGS.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company and Parent shall prepare and file with the SEC a joint proxy statement (the "Joint Proxy Statement") in preliminary form and Parent shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus, and each of the Company and Parent shall use its reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Each of Parent and the Company and Parent shall use all its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Stock Plan and the Company shall use reasonable best efforts to cause furnish all information concerning the Proxy Statement to be mailed to Company and the holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Plan as may be reasonably requested in connection with any such action. The parties shall notify each other promptly as practicable after of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Joint Proxy Statement or the Form S-4 is declared effectiveor for additional information and shall supply each other with copies of all correspondence between such or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Joint Proxy Statement, the Form S-4 or the Merger.
(b) If If, at any time prior to the Effective Time there shall occur (i) receipt of the Company Stockholder Approval or the Parent Stockholder Approval, any event occurs with respect to the Company or any of its subsidiariesCompany Subsidiary, or any change occurs with respect to other information supplied by the Company for inclusion in the Form S-4 or the Joint Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either caseS-4, which event is required to be described in an amendment of, or a supplementsupplement to, the Joint Proxy Statement or the Form S-4, the Company shall promptly notify Parent of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement and the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by lawLaw, disseminated in disseminating the information contained in such amendment or supplement to the stockholders of Company's stockholders.
(c) Each If, at any time prior to the receipt of the Company and Stockholder Approval or the Parent Stockholder Approval, any event occurs with respect to Parent or any Parent Subsidiary, or change occurs with respect to other information supplied by Parent for inclusion in the Joint Proxy Statement or the Form S-4, which is required to be described in an amendment of, or a supplement to, the Joint Proxy Statement or the Form S-4, Parent shall promptly notify the other Company of such event, and Parent and the receipt of any comments from Company shall cooperate in the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings prompt filing with the SEC in connection with of any necessary amendment or supplement to the Merger Joint Proxy Statement and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and and, as required by Law, in disseminating the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary contained in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly such amendment or supplement to the other party any information such party may obtain that could necessitate amending any such documentCompany's stockholders.
(d) The Company shall, as promptly soon as practicable after following the Form S-4 is declared effective under the Securities Actdate of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting in accordance with the DGCL Meeting") for the purpose of obtaining seeking the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Approval. The Company shall recommend use its reasonable efforts to cause the Joint Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the approval and adoption date of this Agreement. The Company shall, through the Company Board, recommend to its stockholders that they give the Company Stockholder Approval, except to the extent that the Company Board shall have withdrawn or modified its approval or recommendation of this Agreement or the Merger and as permitted by the other transactions contemplated hereby (the "Company Recommendation"last sentence of Section 5.02(b). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d6.01(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change ; it being understood and agreed among Parent, Sub and the Company that in the Company Recommendationevent that, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted prior to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing date of the Company Stockholders Meeting, the Company withdraws or modifies its approval or recommendation of the Merger and this Agreement in accordance with the last sentence of Section 5.02(b), then for purposes of the first sentence of this Section 6.01(d), the term "Company Stockholder Approval" shall mean both (i) the approval of this Agreement by a majority of the voting power of the holders of the outstanding Company Common Stock and (ii) the approval of this Agreement by a majority of the voting power of the holders of the outstanding Company Common Stock present and duly voted (in person or by proxy) at the Company Stockholders Meeting, exclusive of those votes taken in respect of the shares of Company Common Stock held by Michael J. Gaughan, Jerry Herbst and Franklin Toti.
Appears in 2 contracts
Sources: Merger Agreement (Boyd Gaming Corp), Merger Agreement (Boyd Gaming Corp)
Additional Agreements. SECTION 5.1 Section 6.01 Preparation of the Form S-4, Proxy StatementStatement and Schedule 13E-3; Company Stockholders Meeting.
(a) As promptly as practicable following after the date of this Agreement, Parent and hereof the Company shall use reasonable best efforts to prepare and file cause to be filed with the SEC a proxy statement to be sent to the stockholders of the Company relating to the Company Stockholders Meeting (together with any amendments or supplements thereto, the “Proxy Statement”) and Parent shall prepare and cause to be filed with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of , and the Schedule 13E-3, and Parent and the Company shall use all their respective reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing. The Each of the Company and Parent shall furnish all information concerning such Person and its Affiliates to the other, and provide such other assistance, as may be reasonably requested in connection with the preparation, filing and distribution of the Form S-4, the Schedule 13E-3 and the Proxy Statement, and the Form S-4, the Schedule 13E-3 and the Proxy Statement shall consider in good faith the inclusion of all information reasonably requested by such other party to be included therein. Each of the Company and Parent shall promptly notify the other upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Form S-4, the Schedule 13E-3 or the Proxy Statement and shall provide the other with copies of all correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand. Each of the Company and Parent shall use its reasonable best efforts to cause respond as promptly as reasonably practicable to any comments from the SEC with respect to the Form S-4, the Schedule 13E-3 or the Proxy Statement. Notwithstanding the foregoing, prior to filing the Form S-4 or the Schedule 13E-3 (or any amendment or supplement thereto) or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each of the Company and Parent (i) shall provide the other a reasonable opportunity to review and comment on such document or response (including the proposed final version of such document or response), (ii) shall consider in good faith the inclusion in such document or response all comments reasonably proposed by the other and (iii) shall not file or mail such document or respond to the SEC prior to receiving the approval of the other, which approval shall not be unreasonably withheld, conditioned or delayed, but, in each case, the foregoing shall not apply to any document relating to a Change in Recommendation. Each of the Company and Parent shall advise the other, promptly after receipt of notice thereof, of the time of effectiveness of the Form S-4, the issuance of any stop order relating thereto or the suspension of the qualification of the Merger Consideration for offering or sale in any jurisdiction, and each of the Company and Parent shall use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. Each of the Company and Parent shall also take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be mailed to holders of Company Common Stock as promptly as practicable after taken under the Form S-4 is declared effectiveSecurities Act, the Exchange Act, any applicable state securities or “blue sky” laws and the rules and regulations thereunder in connection with the Transactions.
(b) If at any time prior to the Effective Time there shall occur (i) Time, any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event occurs with respect to Parent, or any change occurs with respect to other information supplied by Parent for inclusion in the Proxy Statement, the Form S-4 or the Proxy Statement, in either caseSchedule 13E-3, which event is required to be described in an amendment of, or a supplementsupplement to, to the Proxy Statement, the Form S-4 or the Schedule 13E-3, Parent shall promptly notify the Company of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement, such event shall be so described, and such amendment the Form S-4 or supplement shall be promptly filed with the SEC Schedule 13E-3 and, as required by lawLaw, disseminated to in disseminating the stockholders information contained in such amendment or supplement. Nothing in this Section 6.01(b) shall limit the obligations of Companyany party under Section 6.01(a).
(c) Each If prior to the Effective Time, any event occurs with respect to the Company or any Company Subsidiary, or any change occurs with respect to other information supplied by the Company for inclusion in the Proxy Statement, the Form S-4 or the Schedule 13E-3, which is required to be described in an amendment of, or a supplement to, the Proxy Statement, the Form S-4 or the Schedule 13E-3, the Company shall promptly notify Parent of such event, and the Company and Parent shall promptly notify cooperate in the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings prompt filing with the SEC in connection with the Merger and other transactions contemplated hereby of any necessary amendment or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts supplement to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and the Form S-4 or the Schedule 13E-3 and, as required by Law, in disseminating the information contained in such amendment or supplement. Nothing in this Section 6.01(c) shall provide promptly to limit the other obligations of any party any information such party may obtain that could necessitate amending any such documentunder Section 6.01(a).
(d) The Company shall, as promptly soon as reasonably practicable after following the Form S-4 is declared effective under the Securities Actdate of this Agreement, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose sole purposes of obtaining seeking the Company Requisite Stockholder Approval Approvals, considering and subject voting (on a non-advisory basis) upon specified compensation that may become payable to Section 4.3certain of the Company’s executive officers (if required), considering and voting upon a proposal to adjourn the Board of Directors Company Stockholders Meeting from time to time to a later date, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the Company Stockholders Meeting to obtain the Company Requisite Stockholder Approvals, and transacting such other business as may properly come before the Company Stockholders Meeting or any adjournment or postponement of the Company Stockholders Meeting. The Company shall recommend use its reasonable best efforts to (i) cause the Proxy Statement to be mailed to the Company's ’s stockholders as promptly as reasonably practicable after the approval Form S-4 is declared effective under the Securities Act and adoption of this Agreementto hold the Company Stockholders Meeting as soon as reasonably practicable after the Form S-4 becomes effective and (ii) subject to a Change in Recommendation, solicit the Company Requisite Stockholder Approvals. The Company shall, through the Company Board and the Special Committee, recommend to its stockholders that they give the Company Requisite Stockholder Approvals and shall include such recommendation in the Proxy Statement, except to the extent that the Company Board or Special Committee shall have made a Change in Recommendation as permitted by Section 5.02(f) or Section 5.02(g). If on a date for which the Company Stockholders Meeting is scheduled, the Merger and Company has not received proxies representing a sufficient number of shares of Company Common Stock to obtain the other transactions contemplated hereby Company Requisite Stockholder Approvals, whether or not a quorum is present, the Company shall have the right (but not the "obligation) to make one or more successive postponements or adjournments of the Company Recommendation"Stockholders Meeting, provided that (excluding any adjournments or postponements required by applicable Law) the Company Stockholders Meeting is not postponed or adjourned to a date that is more than thirty (30) days after the date for which the Company Stockholders Meeting was originally scheduled (excluding any adjournments or postponements required by applicable Law). Without limiting the generality of the foregoing, the The Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) 6.01 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Acquisition Proposal. Notwithstanding , by the making of any Change in Recommendation or by the occurrence of an Intervening Event. Notwithstanding the foregoing, the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at may adjourn or postpone the Company Stockholders Meeting for from time to time (i) with the purpose consent of approving the Agreement and the Merger and nothing contained herein shall Parent (not to be deemed to relieve unreasonably withheld, conditioned or delayed) or (ii) if the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect determines an amendment or supplement to the timing of Proxy Statement is required by applicable Law (in which case the Company Stockholders MeetingMeeting shall be adjourned to ensure the amendment or supplement is provided to the Company’s stockholders).
Appears in 2 contracts
Sources: Merger Agreement (Jefferies Financial Group Inc.), Merger Agreement (Homefed Corp)
Additional Agreements. SECTION 5.1 Preparation (i) The Executive represents that he or she has not, and agrees that he or she will not, in any way disparage the Company or its current and former officers, directors and employees, or make or solicit any comments, statements, or the like to the media or to others that may be considered to be derogatory or detrimental to the good name or business reputation of any of the Form S-4, Proxy Statement; Stockholders Meeting.aforementioned parties or entities;
(aii) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement The Executive further agrees that he or she will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If not at any time prior discuss any matter concerning the Company with anyone adverse or potentially adverse to the Effective Time there Company on any matter, including, without limitation, employment claims or customer claims, without the prior written consent of the Company. However, if required by a governmental regulatory agency or self-regulatory agency to provide testimony or information regarding the Company, the Executive will cooperate with said regulatory agency. If compelled to testify by a validly served subpoena or by regulatory authority, the Executive will testify truthfully as to all matters concerning his or her employment with the Company. If a regulatory agency or self-regulatory agency contacts the Executive regarding the Company or if the Executive receives a subpoena or other court or legal process relating in any way to the Company, or any present or former Company customer or employee, the Executive immediately will give the Company prior written notice and shall occur make himself or herself available to be interviewed concerning the subject matter of such contact; and
(iiii) any event The Executive agrees to cooperate with respect and make himself or herself readily available to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representativesGeneral Counsel, as the case Company may bereasonably request, on to assist it in any matter, including litigation or proceedings or potential litigation or proceedings, over which the one handExecutive may have knowledge, and the SEC information or its staff or any other appropriate government officialexpertise, on the other handprovided, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statementhowever, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to pay the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality reasonable out-of-pocket expenses of the foregoing, the Company agrees that its Executive in performing his or her obligations pursuant to the first sentence of under this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation2(g)(iii).
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 2 contracts
Sources: Severance Agreement (Express Scripts Inc), Severance Agreement (Express Scripts Inc)
Additional Agreements. SECTION 5.1 Section 6.01 Preparation of the Form S-4, Proxy StatementStatement and Schedule 13E-3; Stockholders Company Shareholders Meeting.
(a) As reasonably promptly as practicable following the date Agreement Date, the Company will, in a manner that complies in all material respects with Regulation 14A promulgated under the Exchange Act with respect to the Transactions, prepare and cause to be filed with the SEC a proxy statement to be sent to the Company’s shareholders relating to the Company Shareholders Meeting that reflects the terms and conditions of this Agreement, Parent and includes the notice of appraisal rights in the Merger to the holders of shares of Company Shares as required by Section 106(2) of the Bermuda Companies Act, and a copy of the Fairness Opinion in its entirety (including a description of the Fairness Opinion and the financial analysis relating thereto), (such proxy statement, together with any amendments or supplements thereto, the “Proxy Statement”). Parent will furnish to the Company shall all information reasonably requested by the Company concerning Parent, Sumitomo or Merger Sub, and provide such other assistance, as the Company may reasonably request in connection with the preparation, filing and distribution of the Proxy Statement. The Company will notify Parent reasonably promptly after its receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and will provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC, on the other hand. The Company will use its reasonable best efforts to respond as reasonably promptly as practicable to any comments from the SEC with respect to the Proxy Statement, and Parent will cooperate in connection therewith. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company will (i) provide Parent an opportunity to review and comment on the Proxy Statement or response (including the proposed final version of the Proxy Statement or response); and (ii) include all comments reasonably proposed by Parent.
(b) The Company and Parent will cooperate to (i) concurrently with the preparation and filing of the Proxy Statement, jointly prepare and file with the SEC a Rule 13E-3 Transaction Statement on Schedule 13E-3 (together with any amendments thereof or supplements thereto, the Form S-4“Schedule 13E-3”) relating to the Transactions, and furnish to each other all information concerning such Party as may be reasonably requested in which connection with the Proxy Statement will be included preparation of the Schedule 13E-3; (ii) respond as a prospectus. Each of Parent reasonably promptly as practicable to any comments received from the SEC with respect to the Schedule 13E-3 and the Company shall use all reasonable efforts consult with each other prior to have the Form S-4 declared effective under the Securities Act providing such response; (iii) as promptly as practicable after reasonably practicable, prepare and file any amendments or supplements necessary to be filed in response to any such filing. The Company shall comments; (iv) use its reasonable best efforts to cause have cleared by the Proxy Statement staff of the SEC the Schedule 13E-3; and (v) to be mailed to holders of Company Common Stock the extent required by applicable Law, as promptly as reasonably practicable after prepare and file any supplement or amendment to the Form S-4 is declared effectiveSchedule 13E-3. Each Party will promptly notify the other Parties upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Schedule 13E-3 and will provide the other Parties with copies of all correspondence between such Party and its Representatives, on the one hand, and the SEC, on the other hand.
(bc) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or change occurs with respect to information supplied by Parent for inclusion in the Form S-4 Proxy Statement or the Proxy Statement, in either case, which event Schedule 13E-3 that is required by Law to be described in an amendment of, or a supplementsupplement to, the Proxy Statement or the Schedule 13E-3, Parent will reasonably promptly notify the Company of such change, and Parent and the Company will cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 Proxy Statement or the Proxy StatementSchedule 13E-3, such event shall be so describedas applicable, and as required by Law, in disseminating the information contained in such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c’s shareholders. Nothing in this Section 6.01(c) Each of will limit the Company and Parent shall promptly notify the other of the receipt obligations of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such documentParty under Section 6.01(a).
(d) If prior to the Effective Time any event occurs with respect to the Company or any Company Subsidiary, or any change occurs with respect to other information supplied by the Company for inclusion in the Proxy Statement or the Schedule 13E-3, that is required by Law to be described in an amendment of, or a supplement to, the Proxy Statement or the Schedule 13E-3, the Company will reasonably promptly notify Parent of such event, and the Company and Parent will cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement or the Schedule 13E-3, as applicable, and as required by Law, in disseminating the information contained in such amendment or supplement to the Company’s shareholders. Nothing in this Section 6.01(d) will limit the obligations of any Party under Section 6.01(a).
(e) The Company shallwill, as promptly as reasonably practicable after the Form S-4 SEC confirms it has no further comments on the Proxy Statement and the Schedule 13E-3 (i) establish a record date for determining shareholders of the Company entitled to vote at the Company Shareholders Meeting; (ii) not change such record date or establish a different record date for the Company Shareholders Meeting without the prior written consent of Parent unless required to do so by applicable Law (and if the date of the Company Shareholders Meeting as originally called is declared effective under for any reason adjourned or otherwise delayed, the Securities ActCompany agrees that unless Parent has otherwise approved in writing (or as required by applicable Law or stock exchange requirement), the Company will, if possible, implement such adjournment or other delay in such a way that the Company does not need to establish a new record date for the Company Shareholders Meeting, as so adjourned or delayed); and (iii) duly call, give notice of, convene and hold the Company Stockholders Shareholders Meeting in accordance with the DGCL for the purpose of obtaining (A) seeking the Company Stockholder Shareholder Approval and subject to the Minority Shareholder Approval, (B) in accordance with Section 4.3, the Board of Directors 14A of the Company shall recommend Exchange Act and the applicable SEC rules issued thereunder, seeking advisory approval of a proposal to the Company's stockholders ’s shareholders for a non-binding, advisory vote to approve certain compensation that may become payable to the approval and adoption Company’s named executive officers in connection with the completion of this Agreement, the Merger and (C) an adjournment proposal. The Company will not change the date of, postpone or adjourn the Company Shareholders Meeting, or submit any other transactions contemplated hereby proposal to the Company’s shareholders in connection with the Company Shareholders Meeting, without the prior written consent of Parent. The Company will use its reasonable best efforts to (i) promptly cause the Proxy Statement to be mailed to the Company’s shareholders as of the record date established for the Company Shareholders Meeting; and (ii) except if an Adverse Recommendation Change has been made as permitted by Section 5.03(d) and remains in effect, solicit the Company Shareholder Approval and the Minority Shareholder Approval, including by retaining the services of a recognized proxy solicitor reasonably acceptable to Parent. The Company will, through the Special Committee, recommend to its shareholders that they give the Company Shareholder Approval and the Minority Shareholder Approval (the "“Company Recommendation")”) and will include such recommendation in the Proxy Statement and the Schedule 13E-3, in each case, unless the Special Committee has validly made an Adverse Recommendation Change as permitted by Section 5.03(d) that is still in effect. Without limiting the generality of the foregoingThe Company agrees that, unless this Agreement is terminated in accordance with its terms prior thereto, its obligations to hold the Company agrees that its obligations Shareholders Meeting pursuant to the first sentence of this Section 5.1(d) shall 6.01 will not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Alternative Proposal. Notwithstanding , by the making of any Adverse Recommendation Change in by the Special Committee or by any other development; provided, however, that if the public announcement of an Adverse Recommendation Change or the delivery of notice by the Company Recommendationto Parent pursuant to Section 5.03(d)(i) occurs less than 10 Business Days prior to the Company Shareholders Meeting, unless otherwise directed the Company will be entitled to postpone the Company Shareholders Meeting to a date not more than 10 Business Days after the date such Company Shareholders Meeting had previously been scheduled (but in writing by no event to a date after the date that is five Business Days before the End Date).
(f) The foregoing provisions of this Section 6.01 notwithstanding, the Company will have the right, after consultation in good faith with Parent, this Agreement and the Merger shall be submitted to the stockholders make one or more successive changes in date, postponements or adjournments of the Company Shareholders Meeting (i) to ensure that any supplement or amendment to the Proxy Statement or Schedule 13E-3 required under applicable Law is timely provided to the shareholders of the Company within a reasonable amount of time, in the good faith judgment of the Special Committee (after consultation with outside counsel), in advance of the Company Shareholders Meeting; (ii) if required by applicable Law or a request from the SEC or its staff; or (iii) if, on a date for which the Company Shareholders Meeting is scheduled, the Company has not received proxies representing a sufficient number of Common Shares to obtain the Company Shareholder Approval and the Minority Shareholder Approval, whether or not a quorum is present; provided that (A) the duration of any such adjournment or postponement is limited to the minimum duration reasonably necessary to remedy the circumstances giving rise to such adjournment or postponement; (B) no single such adjournment or postponement is for more than five Business Days except as may be required by federal securities Laws; and (C) in the case of clause (iii), the Company Shareholders Meeting is not postponed to later than the date that is 10 Business Days after the date for which the Company Shareholders Meeting was originally scheduled without the prior written consent of Parent and that the Company will, and will cause its proxy solicitor to, use reasonable best efforts to solicit such additional proxies (or presence and affirmative vote in person of the Company’s shareholders at the Company Stockholders Shareholders Meeting) as expeditiously as reasonably possible, it being understood that time shall be of the essence. If, on any date for which the Company Shareholders Meeting is scheduled, the Company has not received proxies representing a sufficient number of Common Shares to obtain the Minority Shareholder Approval, the Company will, at Parent’s request, postpone or adjourn the Company Shareholders Meeting on one or more occasions for up to 30 days in the aggregate to allow for the purpose solicitation of approving additional proxies to obtain the Agreement and the Merger and nothing contained herein shall be deemed Minority Shareholder Approval. The Company will also consider in good faith any other request by Parent to relieve postpone the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Shareholders Meeting.
Appears in 2 contracts
Sources: Merger Agreement (Urovant Sciences Ltd.), Merger Agreement (Sumitomo Chemical Co., Ltd.)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy StatementStatement and Form 10; Stockholders Meeting.
(a) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectusand the Form 10. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 S-4, in which the Proxy Statement shall be included, declared effective under the Securities Act and the Form 10 declared effective under the Exchange Act as promptly as practicable after such filing. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock its stockholders as promptly as practicable after the Form S-4 is declared effective; provided, that the Company may elect to postpone the mailing of the Proxy Statement to a date that is no later than at least 20 business days prior to the date Parent informs the Company that the DevCo. Distribution is reasonably capable of being completed.
(b) Each of the Company and Parent covenants that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Proxy Statement will, at the date it is first mailed to the stockholders of the Company, or at the time of the Company Stockholders 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 light of the circumstances under which they are made, not misleading. The Proxy Statement and the Form S-4 will comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as applicable. Notwithstanding the foregoing, (i) no representation or covenant is made by the Company with respect to statements made or incorporated by reference based on information supplied in writing by Parent specifically for inclusion or incorporation by reference in the Form S-4 or Proxy Statement and (ii) no representation or covenant is made by Parent with respect to statements made or incorporated by reference based on information supplied in writing by the Company for inclusion or incorporation by reference in the Form S-4 or the Proxy Statement. If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 S-4, the Proxy Statement and the Proxy StatementForm 10, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject Approval; provided, that the Company may elect to postpone the Company Stockholders Meeting to a date that is no later than 35 business days after the date of mailing of the Proxy Statement in accordance with Section 5.1(a). Subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationobligation unless this Agreement has been terminated.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 2 contracts
Sources: Merger Agreement (Cendant Corp), Merger Agreement (Cendant Corp)
Additional Agreements. SECTION 5.1 Section 6.1. Preparation of the Form S-4, S-4 and the Joint Proxy Statement/Prospectus; Stockholders MeetingMeetings.
(a) As promptly soon as reasonably practicable following the date of this Agreement, Parent Amedisys and OPCH shall prepare the Form S-4 and the Company Joint Proxy Statement/Prospectus, and OPCH shall prepare and file with the SEC the Form S-4, in which shall include the Joint Proxy Statement will be included Statement/Prospectus as a prospectus, with the SEC. The parties shall consult each other in connection with setting a preliminary record date for each of the Amedisys Stockholders Meeting and the OPCH Shareholders Meeting and shall commence broker searches pursuant to Section 14a-13 of the Exchange Act in connection therewith. Each of Parent Amedisys and the Company OPCH shall use all reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company Amedisys and OPCH shall, as promptly as practicable after receipt thereof, provide the other party copies of any written comments and advise the other party of any oral comments, with respect to the Form S-4 or the Joint Proxy Statement/Prospectus received from the SEC. OPCH and Amedisys shall cooperate and provide the other parties with a reasonable opportunity to review and comment on any amendment or supplement to the Form S-4 or the Joint Proxy Statement/Prospectus prior to filing such with the SEC. No filing of, or amendment or supplement to, the Form S-4 will be made by OPCH, and no filing of, or amendment or supplement to, the Joint Proxy Statement/Prospectus will be made by OPCH or Amedisys, in each case without providing the other with a reasonable opportunity to review and comment (which comments shall be considered by the applicable party in good faith) thereon if reasonably practicable; provided that with respect to documents filed by a party that are incorporated by reference in the Form S-4 or the Joint Proxy Statement/Prospectus, this right of review and comment shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, or the combined entity or the transactions contemplated hereby; and provided, further, that this review and comment right shall not apply with respect to information relating to an Amedisys Recommendation Change or an OPCH Recommendation Change. Amedisys shall use reasonable best efforts to cause the Joint Proxy Statement to be mailed to holders of Company Common Stock Amedisys’s stockholders, and OPCH shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be mailed to OPCH’s stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Each party shall advise the other parties, promptly after it receives notice thereof, of the time when the Form S-4 has become effective.
(b) , of the time when any supplement or amendment to the Form S-4 has been filed, of the issuance of any stop order with respect to the Form S-4, or of any request by the SEC for amendment of the Form S-4 or the Joint Proxy Statement/Prospectus or comments on the Form S-4 or the Joint Proxy Statement/Prospectus and responses thereto or requests by the SEC for additional information relating thereto. If at any time prior to the Effective Time there shall occur (i) any event with respect information relating to the Company Amedisys, OPCH or any of its subsidiariestheir respective affiliates, officers or with respect directors, should be discovered by Amedisys or OPCH that should be set forth in an amendment or supplement to other information supplied by Company for inclusion in any of the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Joint Proxy Statement/Prospectus so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in either caselight of the circumstances under which they were made, which event is required to be described in not misleading, the party that discovers such information shall promptly notify the other party and an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, as to the extent required by lawApplicable Law, disseminated to the stockholders of CompanyAmedisys and OPCH.
(cb) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company Amedisys shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold a meeting of its stockholders (the Company “Amedisys Stockholders Meeting Meeting”) in accordance with the DGCL and the rules of the NASDAQ for the purpose of obtaining the Company Amedisys Stockholder Approval and shall, subject to the provisions of Section 4.35.2(b) and Section 5.2(d), the through its Board of Directors of the Company shall Directors, recommend to the Company's its stockholders the approval and adoption of this Agreement. Amedisys may only postpone or adjourn the Amedisys Stockholders Meeting (i) to solicit additional proxies for the purpose of obtaining the Amedisys Stockholder Approval, (ii) for the absence of a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that Amedisys has determined after consultation with outside legal counsel is reasonably likely to be required under Applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by stockholders of Amedisys prior to the Amedisys Stockholders Meeting.
(c) OPCH shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly give notice of, convene and hold a meeting of its stockholders (the “OPCH Stockholders Meeting”) in accordance with the DGCL and the rules of the NASDAQ for the purpose of obtaining the OPCH Stockholder Approvals and shall, subject to the provisions of Section 5.3(b) and Section 5.3(d), through its Board of Directors, recommend to its stockholders the approval of the OPCH Share Issuance and the adoption of the OPCH Charter Amendment. OPCH may only postpone or adjourn the OPCH Stockholders Meeting (i) to solicit additional proxies for the purpose of obtaining the OPCH Stockholder Approvals, (ii) for the absence of a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that OPCH has determined after consultation with outside legal counsel is reasonably likely to be required under Applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by stockholders of OPCH prior to the OPCH Stockholders Meeting.
(d) Amedisys and OPCH shall use reasonable best efforts to hold the Amedisys Stockholders Meeting and the OPCH Stockholders Meeting on the same date and as soon as reasonably practicable after the date of this Agreement.
(e) Subject to the terms and conditions of this Agreement, including Section 5.2 and Section 5.3, Amedisys and OPCH shall use reasonable best efforts to (i) solicit from Amedisys’s stockholders (in the case of Amedisys) and OPCH’s stockholders (in the case of OPCH) proxies in favor of the Amedisys Stockholder Approval and the OPCH Stockholder Approvals, respectively, and (ii) take all other action necessary or advisable to secure the Amedisys Stockholder Approval and the OPCH Stockholder Approvals, respectively.
(f) The only matters to be voted upon at each of the Amedisys Stockholders Meeting and the OPCH Stockholders Meeting are (i) the Merger, in the case of the Amedisys Stockholders Meeting, and the OPCH Share Issuance and the OPCH Charter Amendment, in the case of the OPCH Stockholders Meeting, (ii) compensatory arrangements between Amedisys and its executive officers relating to the Merger (on a non-binding, advisory basis), in the case of the Amedisys Stockholders Meeting, and (iii) any adjournment or postponement of the Amedisys Stockholders Meeting or the OPCH Stockholders Meeting, as applicable, for a reasonable period to solicit additional proxies, if deemed necessary by Amedisys or OPCH, respectively, and (iv) any other matters that are (I) required by Applicable Law or the Bylaws of OPCH or Amedisys, as applicable, or (II) if so desired and mutually agreed on, of the type customarily brought before a meeting of stockholders in connection with approval of this Agreement and the other transactions contemplated hereby by this Agreement.
(the "Company Recommendation"). g) Without limiting the generality of the foregoing, the Company (i) OPCH agrees that its obligations pursuant to the first sentence of this Section 5.1(d) 6.1 to hold the OPCH Stockholders Meeting shall not be affected by the commencement, public proposal, public disclosure or communication to the Company OPCH or any other person of any Company Takeover Proposal. Notwithstanding any OPCH Alternative Transaction or the making of an OPCH Recommendation Change in and (ii) Amedisys agrees that its obligations pursuant to this Section 6.1 to hold the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Amedisys Stockholders Meeting for shall not be affected by the purpose commencement, public proposal, public disclosure or communication to Amedisys or any other person of approving any Amedisys Alternative Transaction or the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company making of such obligationan Amedisys Recommendation Change.
(eh) The Company shall coordinate Each of Amedisys and cooperate OPCH agrees that none of the information supplied or to be supplied by such party (or its subsidiaries) for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with Parent the SEC, and at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, 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 are made, not misleading, or (ii) the Joint Proxy Statement/Prospectus will, at the date it is first mailed to OPCH's or Amedisys's stockholders or at the time of the OPCH Stockholders Meeting or the Amedisys Stockholders 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 light of the circumstances under which they are made, not misleading. Each of Amedisys and OPCH will cause the Form S-4 and the Joint Proxy Statement/Prospectus to comply as to form in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder. Notwithstanding the foregoing, no covenant is made by either Amedisys or OPCH with respect to the timing statements made or incorporated by reference therein based on information supplied by or on behalf of the Company Stockholders Meetingother party (or its subsidiaries) for inclusion or incorporation by reference in the Form S-4 or the Joint Proxy Statement/Prospectus.
Appears in 2 contracts
Sources: Merger Agreement (Amedisys Inc), Merger Agreement (Option Care Health, Inc.)
Additional Agreements. SECTION 5.1 Section 5.01 Preparation of the Form S-4, S-4 and the Joint Proxy Statement; Stockholders MeetingShareholders Meetings.
(a) As promptly soon as practicable following the date of this Agreement, Parent Cinergy and Duke shall prepare and file with the SEC the Joint Proxy Statement and Cinergy, Duke and the Company shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectusincluded. Each of Parent Cinergy, Duke and the Company shall use all its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall Cinergy will use its reasonable best efforts to cause the Joint Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so describedCinergy's shareholders, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or Duke will use its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of cause the SEC with respect to the Form S-4 and the Joint Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with to be mailed to Duke's shareholders, in each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Each party hereto shall also take any action required to be taken under any applicable state or provincial securities laws in connection with the issuance of Company Common Stock in the Mergers and each party shall furnish all information concerning itself and its shareholders as may be reasonably requested in connection with any such action. Each party will advise the others, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Company Common Stock issuable in connection with the Mergers for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If prior to the Effective Time any event occurs with respect to Cinergy, Duke or any subsidiary of Cinergy or Duke, respectively, or any change occurs with respect to information supplied by or on behalf of Cinergy or Duke, respectively, for inclusion in the Joint Proxy Statement or the Form S-4 that, in each case, is required to be described in an amendment of, or a supplement to, the Joint Proxy Statement or the Form S-4, Cinergy or Duke, as applicable, shall promptly notify the other and the Company of such event, and Cinergy or Duke, as applicable, shall cooperate with the Company in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement and the Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to Cinergy's shareholders and to Duke's shareholders.
(b) Cinergy shall, as soon as reasonably practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the Company Stockholders Meeting in accordance with the DGCL "Cinergy Shareholders Meeting") for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation")Cinergy Shareholder Approval. Without limiting the generality of the foregoing, the Company Cinergy agrees that its obligations pursuant to the first sentence of this Section 5.1(d5.01(b) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company Cinergy of any Company Cinergy Takeover Proposal, (ii) the withdrawal or modification by the Board of Directors of Cinergy of its approval or recommendation of this Agreement, the Cinergy Merger or the other transactions contemplated hereby, or (iii) the approval or recommendation of any Cinergy Superior Proposal. Notwithstanding any Change of the events set forth in clauses (i), (ii) and (iii) of the immediately preceding sentence, in the Company Recommendationevent Cinergy fulfills its obligations pursuant to this Section 5.01(b) and the Cinergy Shareholder Approval is not obtained at the Cinergy Shareholders Meeting, unless otherwise directed in writing by Parent, Duke shall not thereafter have the right to terminate this Agreement and the Merger shall be submitted pursuant to the stockholders Sections 7.01(h)(i) as a result of the Company at Board of Directors of Cinergy (or any committee thereof) having, pursuant to Section 4.03(b)(ii), withdrawn or modified, or proposed publicly to withdraw or modify, the Company Stockholders Meeting approval or recommendation by such Board of Directors of this Agreement or the Cinergy Merger, provided Duke shall retain all other rights to terminate this Agreement set forth in Section 7.01.
(c) Duke shall, as soon as reasonably practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the "Duke Shareholders Meeting") for the purpose of approving obtaining the Agreement Duke Shareholder Approval. Without limiting the generality of the foregoing, Duke agrees that its obligations pursuant to the first sentence of this Section 5.01(c) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to Duke of any Duke Takeover Proposal, (ii) the withdrawal or modification by the Board of Directors of Duke of its approval or recommendation of this Agreement, the Duke Merger or the other transactions contemplated hereby, or (iii) the approval or recommendation of any Duke Superior Proposal. Notwithstanding any of the events set forth in clauses (i), (ii) and (iii) of the immediately preceding sentence, in the event Duke fulfills its obligations pursuant to this Section 5.01(c) and the Merger and nothing contained herein Duke Shareholder Approval is not obtained at the Duke Shareholders Meeting, Cinergy shall be deemed not thereafter have the right to relieve terminate this Agreement pursuant to Sections 7.01(g)(i) as a result of the Company Board of Directors of Duke (or any committee thereof) having, pursuant to Section 4.04(b)(ii), withdrawn or modified, or proposed publicly to withdraw or modify, the approval or recommendation by such obligationBoard of Directors of this Agreement or the Duke Merger, provided Cinergy shall retain all other rights to terminate this Agreement set forth in Section 7.01.
(ed) The Company shall coordinate Cinergy and cooperate with Parent with respect Duke will use their reasonable best efforts to hold the timing Duke Shareholders Meeting and the Cinergy Shareholders Meeting on the same date and as soon as practicable after the date of the Company Stockholders Meetingthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Cinergy Corp), Merger Agreement (Duke Energy Corp)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Section 6.01 Proxy Statement; Stockholders Meeting.
(a) Statement and Schedule 13E-3. As promptly soon as practicable following the date of this Agreement, the Company, with the assistance of Parent and Merger Sub, shall prepare a proxy statement relating to the authorization and approval of this Agreement, the Plan of Merger and the Transactions by the shareholders of the Company including a notice convening the Shareholders’ Meeting in accordance with the Company’s memorandum and articles of association (such proxy statement and notice, as amended or supplemented, being referred to herein as the “Proxy Statement”). Concurrently with the preparation of the Proxy Statement, the Company, Parent and Merger Sub shall jointly prepare a Schedule 13E-3. The Company, Parent and file Merger Sub shall use their reasonable efforts to cause the initial Schedule 13E-3 to be filed with the SEC (with the Form S-4initial Proxy Statement filed as an exhibit) as soon as practicable after the date of this Agreement. Each of the Company, Parent and Merger Sub shall use its reasonable best efforts so that the Schedule 13E-3 will comply as to form in which all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. Each of the Company, Parent and Merger Sub shall use its reasonable best efforts to respond promptly to any comments of the SEC with respect to the Proxy Statement will be included as a prospectusand Schedule 13E-3 and to resolve comments from the SEC. Each of the Company, Parent and Merger Sub shall furnish all information concerning such party to the Company shall use all reasonable efforts to have others as may be reasonably requested in connection with the Form S-4 declared effective under preparation, filing and distribution of the Securities Act as promptly as practicable after such filingProxy Statement and Schedule 13E-3. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of Parent and Merger Sub upon the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by request from the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger Proxy Statement and other transactions contemplated hereby or for additional information Schedule 13E-3 and shall supply the other provide Parent with copies of all correspondence between the Company or any of it and its representatives, or Parent or any of its representatives, as the case may beRepresentatives, on the one hand, and the SEC or and its staff or any other appropriate government officialstaff, on the other hand, with respect . Prior to filing or mailing the Proxy Statement and Schedule 13E-3 (or any amendment or supplement thereto. The Company and Parent shall use their respective reasonable best efforts to respond ) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent and Merger Sub a reasonable amount of time to review and comment on such document or response and (ii) shall consider in good faith including in such document or response all comments reasonably proposed by Parent and Merger Sub. If at any time prior to the Form S-4 and Shareholders’ Meeting, any information relating to the Company, Parent, Merger Sub or any of their respective Affiliates, officers or directors, is discovered by the Company, Parent or Merger Sub which should be set forth in an amendment or supplement to the Proxy Statement as promptly as practicable. The Company and Parent Schedule 13E-3 so that (x) the Proxy Statement and Schedule 13E-3 shall cooperate with each other and provide not contain any untrue statement of a material fact or omit to each other all information state any material fact required to be stated therein or necessary in order to prepare make the Form S-4 and statements therein, in light of the Proxy Statementcircumstances under which they are made, not misleading, and shall provide promptly to (y) the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors shareholders of the Company are able to make an informed decision on whether or not to attend the Shareholders’ Meeting and how to vote, the party which discovers such information shall recommend promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the Company's stockholders extent required by applicable Law, disseminated to the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality shareholders of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationCompany.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 2 contracts
Sources: Merger Agreement (Country Style Cooking Restaurant Chain Co., Ltd.), Merger Agreement (Country Style Cooking Restaurant Chain Co., Ltd.)
Additional Agreements. SECTION 5.1 9.1 Preparation and Filing of the Form S-4Registration Statements, Proxy Statement; Stockholders Meetingthe Proxy/Consent Solicitation Statement and Other Filings.
(a) As promptly soon as reasonably practicable following after the date of this Agreement, Parent the parties shall cooperate fully with each other in connection with the preparation of the Registration Statements, the Proxy/Consent Solicitation Statement and the Company shall prepare and file any other statements, reports or filings with the SEC or state or foreign securities regulators relating to the Form S-4, Transactions and any other materials to be disseminated by GM to its stockholders in which connection with the Proxy Statement will be included Transactions (the foregoing being collectively referred to herein as a prospectusthe "Disclosure Documents"). Each of Parent the Purchaser, GM and ▇▇▇▇▇▇, as and to the Company extent applicable, shall use take all commercially reasonable efforts actions in order to have cause the Form S-4 declared effective Registration Statements and any other Disclosure Documents, including any and all amendments thereto, to be executed and filed with the SEC and submitted or filed with any applicable foreign and state securities law regulators in accordance with Applicable Law, in each case as soon as reasonably practicable after the date hereof. The parties shall promptly provide each other with copies of, and consult with each other and prepare written responses with respect to, any written comments received from the SEC and other state and foreign securities regulators with respect to the Registration Statements, the Proxy/Consent Solicitation Statement and any other Disclosure Documents and promptly advise each other of any oral comments received from the SEC and other state and foreign securities regulators, and, to the extent reasonably practicable under the Securities Act as promptly as practicable after circumstances, shall offer a reasonable opportunity to appropriate representatives of the other parties to participate in any telephone calls with the SEC or any state or foreign securities regulator the purpose of which is to discuss comments made by such filingregulators. The Company parties shall respond to any comments made by the SEC or any state or foreign securities regulator as soon as reasonably practicable following the receipt of such comments (it being understood and agreed that GM shall be expressly permitted to respond as it deems appropriate (subject to Purchaser's concurrence therewith, which concurrence shall not be unreasonably withheld or delayed) to any comments by the SEC or any state or foreign securities regulators relating to the formulation of the Requisite Vote Matters to be submitted by GM to its stockholders for approval). No amendment or supplement to any Registration Statement, the Proxy/Consent Solicitation Statement or any other Disclosure Document (or any related materials) will be filed or submitted to the SEC or any state or foreign regulator or publicly disseminated by any of the parties without the approval of the other parties, which shall not be unreasonably withheld or delayed. The parties shall use reasonable best efforts to cause the Proxy Statement Registration Statements to be mailed declared effective by the SEC and to holders obtain appropriate approvals from all other applicable foreign and state securities law regulators in accordance with Applicable Law, except for any such approvals the failure of Company Common Stock which would not reasonably be expected to have a material adverse impact on the ability of the parties to consummate the transactions contemplated by the Transaction Agreements. The parties shall take all other actions with respect to the preparation and delivery of the Registration Statements, the Proxy/Consent Solicitation Statement and any other Disclosure Documents as promptly as practicable after the Form S-4 is declared effectiverequired by Section 7.2 hereof.
(b) The Purchaser shall, and shall cause Merger Sub to, promptly furnish ▇▇▇▇▇▇ and GM with all information concerning the Purchaser, Merger Sub and, to the extent applicable and obtainable by the Purchaser or Merger Sub using reasonable best efforts, any Purchaser Affiliate, as may be requested for inclusion in the Registration Statements. GM and ▇▇▇▇▇▇ shall promptly furnish the Purchaser with all information concerning GM, ▇▇▇▇▇▇, any Subsidiary of ▇▇▇▇▇▇ (other than PanAmSat and HSSL) or, to the extent obtainable by GM or ▇▇▇▇▇▇ using reasonable best efforts, PanAmSat and HSSL, as may be requested for inclusion in the Registration Statements. If at any time prior to the Merger Effective Time there shall occur (i) Time, any event with respect information pertaining to the Company Purchaser or Merger Sub contained in or omitted from the Registration Statements makes the statements contained therein false or misleading, the Purchaser shall promptly inform ▇▇▇▇▇▇ and GM and shall promptly provide the information necessary to make the statements contained therein not false or misleading. If at any of its subsidiariestime prior to the Merger Effective Time, any information pertaining to any Purchaser Affiliate contained in or with respect to other information supplied by Company for inclusion in omitted from the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplementRegistration Statements, to the Form S-4 knowledge of the Purchaser, makes the statements contained therein false or misleading, the Proxy Statement, such event Purchaser shall be so described, promptly inform ▇▇▇▇▇▇ and such amendment GM and shall use reasonable best efforts to promptly provide the information necessary to make the statements contained therein not false or supplement shall be promptly filed with the SEC and, as required by law, disseminated misleading. If at any time prior to the stockholders Merger Effective Time, any information pertaining to GM, ▇▇▇▇▇▇ or any Subsidiary of Company▇▇▇▇▇▇ (other than PanAmSat or HSSL) contained in or omitted from the Registration Statements makes the statements contained therein false or misleading, ▇▇▇▇▇▇ and GM shall promptly inform the Purchaser and shall promptly provide the information necessary to make the statements contained therein not false or misleading. If at any time prior to the Merger Effective Time, any information pertaining to PanAmSat or HSSL contained in or omitted from the Registration Statements, to the Knowledge of ▇▇▇▇▇▇, makes the statements contained therein false or misleading, ▇▇▇▇▇▇ shall promptly inform GM and the Purchaser and shall use reasonable best efforts to promptly provide the information necessary to make the statements contained therein not false or misleading.
(c) Each of The Purchaser shall, and shall cause Merger Sub to, promptly furnish GM with all information concerning the Company and Parent shall promptly notify Purchaser, Merger Sub and, to the other of extent obtainable by the receipt of Purchaser or Merger Sub using reasonable best efforts, any comments from Purchaser Affiliate, as may be requested for inclusion in the SEC or its staff Proxy/Consent Solicitation Statement or any other appropriate government official Disclosure Document. ▇▇▇▇▇▇ shall promptly furnish GM with all information concerning ▇▇▇▇▇▇, any Subsidiary of ▇▇▇▇▇▇ (other than PanAmSat and of any requests HSSL) or, to the extent obtainable by ▇▇▇▇▇▇ using reasonable best efforts, PanAmSat and HSSL, as may be requested for inclusion in the SEC or its staff Proxy/Consent Solicitation Statement or any other appropriate government official for amendments Disclosure Document. GM and ▇▇▇▇▇▇ shall promptly furnish the Purchaser with all information concerning GM, ▇▇▇▇▇▇, any Subsidiary of ▇▇▇▇▇▇ (other than PanAmSat and HSSL) or, to the extent obtainable by GM or supplements to any of the filings with the SEC in connection with the Merger ▇▇▇▇▇▇ using reasonable best efforts, PanAmSat and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representativesHSSL, as may be requested for inclusion in the case may be, on the one hand, and the SEC or its staff Proxy/Consent Solicitation Statement or any other appropriate government officialDisclosure Document. If at any time prior to the Merger Effective Time, on any information pertaining to the Purchaser or Merger Sub contained in or omitted from the Proxy/Consent Solicitation Statement or any other handDisclosure Document makes the statements contained therein false or misleading, with respect theretothe Purchaser shall promptly inform GM and shall promptly provide the information necessary to make the statements contained therein not false or misleading. The Company If at any time prior to the Merger Effective Time, any information pertaining to any Purchaser Affiliate contained in or omitted from the Proxy/Consent Solicitation Statement or any other Disclosure Document, to the knowledge of the Purchaser, makes the statements contained therein false or misleading, the Purchaser shall promptly inform GM and Parent shall use their respective reasonable best efforts to respond promptly provide the information necessary to make the statements contained therein not false or misleading. If at any comments of the SEC with respect time prior to the Form S-4 Merger Effective Time, any information pertaining to ▇▇▇▇▇▇ or any Subsidiary of ▇▇▇▇▇▇ (other than PanAmSat or HSSL) contained in or omitted from the Proxy/Consent Solicitation Statement or any other Disclosure Document makes the statements contained therein false or misleading, ▇▇▇▇▇▇ shall promptly inform GM and the Proxy Statement as Purchaser and shall promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all the information necessary to make the statements contained therein not false or misleading. If at any time prior to the Merger Effective Time, any information pertaining to PanAmSat or HSSL contained in order or omitted from the Proxy/Consent Solicitation Statement or any other Disclosure Document, to prepare the Form S-4 Knowledge of ▇▇▇▇▇▇, makes the statements contained therein false or misleading, ▇▇▇▇▇▇ shall promptly inform GM and the Proxy StatementPurchaser and use reasonable best efforts to promptly provide the information necessary to make the statements contained therein not false or misleading. If at any time prior to the Merger Effective Time, any information pertaining to GM contained in or omitted from the Proxy/Consent Solicitation Statement or any other Disclosure Document makes the statements contained therein false or misleading, GM shall promptly inform the Purchaser and shall promptly provide promptly the information necessary to make the other party any information such party may obtain that could necessitate amending any such documentstatements contained therein not false or misleading.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hughes Electronics Corp), Stock Purchase Agreement (News Corp LTD)
Additional Agreements. SECTION 5.1 5.01. Preparation of the Form S-4, F-4 and the Proxy Statement; Stockholders Meeting.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Proxy Statement and Parent and the Company shall prepare and Parent shall file with the SEC the Form S-4F-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 F-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall will use all reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock the Company's stockholders as promptly as practicable after the Form S-4 F-4 is declared effective.
effective under the Securities Act. Parent shall also take any action (bother than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Shares in the Merger, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the Proxy Statement. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form F-4 will be made by Parent, or the Proxy Statement will be made by the Company, without providing the other party a reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form F-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Shares issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form F-4 or comments thereon and responses thereto or requests by the SEC for additional information. The Company will advise Parent, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time there shall occur (i) any event with respect information relating to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to information supplied by Parent for inclusion in any of the Form S-4 F-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in either caselight of the circumstances under which they were made, not misleading, the party which event is required to be described in discovers such information shall promptly notify the other parties hereto and an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, as to the extent required by law, disseminated to the stockholders of the Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(db) The Company shall, as promptly soon as practicable after following the Form S-4 is declared effective under date of this Agreement, establish a record date (which will be as soon as practicable following the Securities Actdate of this Agreement) for, duly call, give notice of, convene and hold a meeting of its stockholders (the Company "Stockholders Meeting in accordance with the DGCL Meeting") solely for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Approval. The Company shall recommend cause the Stockholders Meeting to be held as promptly as practicable after the Company's stockholders the approval and adoption date of this Agreement. Subject to Section 4.02(b)(i), the Merger Company shall, through its Board of Directors, recommend to its stockholders that they adopt this Agreement and shall include such recommendation in the other transactions contemplated hereby (the "Company Recommendation")Proxy Statement. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d5.01(b) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal. Notwithstanding any Change in Proposal or (ii) the Company Recommendation, unless otherwise directed in writing withdrawal or modification by Parent, this Agreement and the Merger shall be submitted to the stockholders Board of Directors of the Company at the Company Stockholders Meeting for the purpose or any committee thereof of approving the Agreement and such Board of Directors' or such committee's approval or recommendation of the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationor this Agreement.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 2 contracts
Sources: Merger Agreement (Vivendi), Merger Agreement (Mp3 Com Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, VIII.1 Registration Statement; Proxy Statement; Stockholders MeetingShareholder Approval.
(a) As promptly soon as reasonably practicable following the date after execution of this Agreement, Parent Premier shall file the Registration Statement with the SEC, and shall use its reasonable efforts to cause the Registration Statement to become effective under the 1933 Act and take any action required to be taken under the applicable state Blue Sky or securities Laws in connection with the issuance of the shares of Surviving Corporation Common Stock upon consummation of the Merger. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall furnish all information concerning it and the Company holders of its capital stock as Premier may reasonably request in connection with such action.
(b) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall call a shareholders' meeting, to be held as soon as reasonably practicable after the Registration Statement is declared effective by the SEC, for the purpose of voting upon approval of this Agreement and such other related matters as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ deems appropriate.
(c) Premier shall call its annual shareholders meeting, to be held on May 16, 1998, one purpose of which will be to vote upon approval of this Agreement and to increase the number of authorized shares of Premier Common Stock in order to consummate the Merger.
(d) In connection with the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Shareholders' Meeting, (i) Premier shall prepare and file with the SEC the Form S-4, in which the on ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ behalf a Proxy Statement will (which shall be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or Registration Statement) and mail it to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ shareholders, (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event Parties shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide furnish to each other all information necessary concerning them that they may reasonably request in order to prepare the Form S-4 and the connection with such Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(diii) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall recommend (subject to compliance with the Company's stockholders fiduciary duties of the members of the Board of Directors as advised by counsel) to its shareholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and (iv) the Merger Board of Directors and officers of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall be submitted use their reasonable efforts to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed obtain such shareholders' approval (subject to relieve the Company of such obligationcompliance with their fiduciary duties as advised by counsel).
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation The Company agrees that, upon the occurrence and during the continuance of a Default hereunder, it will, at any time and from time to time, upon the written request of the Form S-4Trustee, Proxy Statement; Stockholders Meeting.
use its best efforts to take or to cause the issuer of the Pledged Shares and any other securities distributed in respect of the Pledged Shares (a) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file collectively with the SEC Pledged Shares, the Form S-4"Pledged Securities") to take such action and prepare, distribute or file such documents, as are required or advisable in which the Proxy Statement will be included as a prospectus. Each reasonable opinion of Parent and counsel for the Company shall use all reasonable efforts Trustee to have permit the Form S-4 declared effective under the Securities Act as promptly as practicable after public sale of such filingPledged Securities. The Company shall use further agrees to indemnify, defend and hold harmless the Trustee, each Holder, any underwriter and their respective officers, directors, affiliates and controlling persons from and against all loss, liability, expenses, costs of counsel (including reasonable best efforts fees and expenses of legal counsel to cause the Proxy Statement Trustee), and claims (including the costs of investigation) that they may incur insofar as such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact required to be mailed stated therein or necessary to holders of Company Common Stock make the statements in any thereof not misleading, except insofar as promptly as practicable after the Form S-4 is declared effective.
(b) If at same may have been caused by any time prior to the Effective Time there shall occur (i) any event with respect untrue statement or omission based upon information furnished in writing to the Company or the issuer of such Pledged Securities by the Trustee or any of Holder expressly for use therein. The Company further agrees, upon such written request referred to above, to use its subsidiariesbest efforts to qualify, file or register, or with respect cause the issuer of such Pledged Securities to other information supplied by Company for inclusion in the Form S-4 qualify, file or the Proxy Statement or (ii) any event with respect to Parentregister, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with Pledged Securities under the SEC in connection with Blue Sky or other securities laws of such states as may be requested by the Merger Trustee and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representativeskeep effective, or Parent cause to be kept effective, all such qualifications, filings or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect theretoregistrations. The Company will bear all costs and Parent shall use their respective reasonable best efforts to respond to any comments expenses of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicablecarrying out its obligations under this Section 10.13. The Company and Parent shall cooperate with each other and provide acknowledges that there is no adequate remedy at law for failure by it to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance comply with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence provisions of this Section 5.1(d) shall 10.13 and that such failure would not be affected by the commencementadequately compensable in damages, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change and therefore agree that their agreements contained in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall Section 10.13 may be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationspecially enforced.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Indenture (Rev Holdings LLC)
Additional Agreements. SECTION 5.1 Preparation of the Form S-46.01. PREPARATION OF THE PARENT FORM ▇-▇, Proxy Statement▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇-▇, THE FORM 8-A AND THE PARENT PROXY STATEMENT; Stockholders MeetingSTOCKHOLDERS' MEETING.
(a) As promptly soon as practicable following the date of this Agreement, the Company and Parent shall prepare and the Company shall file with the SEC the Proxy Statement, the Newco Form S-4 and the Form 8-A and Parent shall prepare and file with the SEC the Parent Form S-4, in which the . The Proxy Statement will be included as a prospectusprospectus in the Newco Form S-4 and the Parent Form S-4. Each of Parent and the Company and Parent shall use all its commercially reasonable efforts to have the Newco Form S-4 and the Parent Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its commercially reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock the Company's stockholders as promptly as practicable after the Newco Form S-4 and the Parent Form S-4 are declared effective under the Securities Act. Each of Parent and the Company shall also take any action (other than qualifying to do business in any jurisdiction in which it is declared effective.
(bnot now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with, in the case of Parent, the issuance of Parent Common Stock in the Merger and, in the case of the Company, the issuance of Newco Common Stock in the Split-Off. The Company shall furnish all information concerning the Company and the holders of Company Common Stock, and Parent shall furnish all information concerning Parent, as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the Proxy Statement, the Newco Form S-4 and the Parent Form S-4. No filing of, or amendment or supplement to, the Parent S-4 will be made by Parent, and no filing of, or amendment or supplement to, the ▇▇▇▇▇ ▇-▇ or the Proxy Statement will be made by the Company, in each case without providing the other party a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time there shall occur (i) any event with respect information relating to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect any of their respective Affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to information supplied by any of the Parent for inclusion in Form S-4, the Newco Form S-4 or the Proxy Statement, so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in either caselight of the circumstances under which they were made, not misleading, the party which event is required to be described in discovers such information shall promptly notify the other parties hereto and an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, as to the extent required by law, disseminated to the stockholders of the Company.
(c) Each of the Company and Parent . The parties shall notify each other promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests request by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with Proxy Statement, the SEC in connection with Newco Form S-4, the Merger and other transactions contemplated hereby Form 8-A or the Parent Form S-4 or for additional information and shall supply the each other with copies of all correspondence between the Company it or any of its representatives, or Parent or any of its representatives, as the case may beRepresentatives, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the Newco Form S-4, the Parent Form S-4, the Form 8-A, the Merger or the other party any information such party may obtain that could necessitate amending any such documenttransactions contemplated by the Transaction Agreements.
(db) The Company shall, as promptly soon as practicable after following the Form S-4 is declared effective under date of this Agreement (taking into account any delays reasonably required as a result of the Securities Actoccurrence of any event described in the last sentence of this clause (b)), establish a record date following the date of this Agreement for, duly call, give notice of, convene and hold a meeting of its stockholders (the Company Stockholders Meeting in accordance with the DGCL "Stockholders' Meeting") solely for the purpose of obtaining the Company Stockholder Approval and subject Approval. Subject to Section 4.35.02(b), the Company shall, through its Board of Directors of the Company shall Directors, recommend to the Company's its stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (and, if required, the "Company Recommendation")other Transaction Agreements and the transactions contemplated thereby) and shall include such recommendation in the Proxy Statement. Without limiting the generality of the foregoing, the Company agrees that its Company's obligations pursuant to the first sentence of this Section 5.1(d6.01(b) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in Proposal or (ii) the Company Recommendation, unless otherwise directed in writing withdrawal or modification by Parent, this Agreement and the Merger shall be submitted to the stockholders Board of Directors of the Company at the Company Stockholders Meeting for the purpose or any committee thereof of approving the Agreement and such Board of Directors' or such committee's approval or recommendation of the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationor this Agreement.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Agreement and Plan of Split Off and Merger (Inverness Medical Technology Inc/De)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Section 8.01 Proxy Statement; Stockholders Meeting.
(a) Statement and Schedule 13E-3. As promptly as reasonably practicable following the date hereof, the Company, with the assistance of Parent and Merger Sub, shall prepare and, promptly after the Go Shop Period End Date (or earlier, if the Special Committee so directs), shall cause to be filed with the SEC a proxy statement (such proxy statement, as amended or supplemented, being referred to herein as the “Proxy Statement”) and a Rule 13e-3 transaction statement on Schedule 13E-3 (such Schedule 13E-3, as amended or supplemented, being referred to herein as the “Schedule 13E-3”), in each case relating to the authorization and adoption by the Stockholders of this AgreementAgreement and the Transactions, including the Merger. Each of the Company, Parent and Merger Sub shall use its reasonable best efforts so that the Company Proxy Statement and the Schedule 13E-3 will comply in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. The Company, with the assistance of, and after consultation with, Parent and Merger Sub, shall use its reasonable best efforts to: (a) respond, as promptly as reasonably practicable, to any comments received from the staff of the SEC with respect to such filings of the Proxy Statement and the Schedule 13E-3; (b) prepare and file with file, as promptly as reasonably practicable, any amendments or supplements necessary to be filed in response to any such comments or as required by Law; (c) have cleared by the staff of the SEC the Form S-4Proxy Statement and the Schedule 13E-3; and (d) to the extent required by applicable Law, in which as promptly as reasonably practicable, prepare, file and distribute to the Stockholders any supplement or amendment to the Proxy Statement will be included as a prospectus. Each of Parent and or the Company Schedule 13E-3 if any event shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after occur which requires such filing. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If action at any time prior to the Effective Time there Stockholders’ Meeting. Each of the Company, Parent and Merger Sub shall occur (i) any event with respect promptly furnish all information concerning such party to the Company or any other parties as may be reasonably requested in connection with the preparation, filing and distribution of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in and the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Schedule 13E-3. The Company and Parent shall promptly notify the other of Parent upon the receipt of any comments from the SEC or its staff with respect to the Proxy Statement or any other appropriate government official the Schedule 13E-3 and of any requests by the SEC or its staff or for any other appropriate government official for amendments or supplements to any of the filings with Proxy Statement or the SEC in connection with the Merger and other transactions contemplated hereby or for additional information Schedule 13E-3 and shall supply the other promptly provide Parent with copies of all written correspondence between the Company or any of it and its representatives, or Parent or any of its representatives, as the case may beRepresentatives, on the one hand, and the SEC or and its staff or any other appropriate government officialstaff, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts promptly provide the Company with copies of any requests by the SEC or its staff for any amendments or supplements to respond the Schedule 13E-3 and with copies of all written correspondence between it and its Representatives, on the one hand, and the SEC and its staff, on the other hand. Prior to filing or mailing of the Proxy Statement and the Schedule 13E-3 (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall (i) provide Parent a reasonable opportunity to review and comment on such document or response and (ii) consider in good faith all comments proposed by Parent and its Representatives. If at any time prior to the Form S-4 and Stockholders’ Meeting, any information relating to the Company, Parent, Merger Sub or any of their respective Affiliates, officers or directors is discovered by the Company, Merger Sub or Parent which should be set forth in an amendment or supplement to the Proxy Statement as promptly as practicable. The Company and Parent and/or the Schedule 13E-3 so that the Proxy Statement and/or the Schedule 13E-3 shall cooperate with each other and provide not contain any untrue statement of a material fact or omit to each other all information state any material fact required to be stated therein or necessary in order to prepare make the Form S-4 statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be filed with the Proxy StatementSEC and, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shallextent required by applicable Law, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend disseminated to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationStockholders.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Stonemor Inc.)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement; Stockholders Meeting.
(a) As promptly as practicable following the date of this Agreement, Parent Newco and the Company shall prepare prepare, and Newco shall file with the SEC SEC, the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent Newco and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act Act, and for the Proxy Statement to be cleared under the Exchange Act, as promptly as practicable after such filing. The Without limiting any other provision hereinabove contained, the Form S-4 and the Proxy Statement will contain, without limitation, such information and disclosure reasonably requested by either Newco or Company so that (i) the Form S-4 conforms in both form and substance to the requirements of the Securities Act, and (ii) the Proxy Statement conforms in both form and substance to the requirements of the Exchange Act. Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiariesSubsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to ParentNewco, or with respect to information supplied by Parent Newco for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplementsupplement to, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent Newco shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and the other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent Newco or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent Newco shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent Newco shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's ’s stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "“Company Recommendation"”); provided, however, that Company’s Board of Directors shall not be required to make such Company Recommendation to the extent that it is permitted to effect a Change in Company Recommendation pursuant to Section 4.3. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by ParentNewco, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation, provided, however, that if the Board of Directors of Company shall have effected a Change in Company Recommendation in accordance with this Agreement, then in submitting this Agreement to Company’s stockholders, the Board of Directors of Company may submit this Agreement to Company’s stockholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to Company’s stockholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law. If required by applicable law or stock exchange requirements, or if Parent elects in its discretion to submit this Agreement to its stockholders or Newco stockholders for approval, Parent and/or Newco, as applicable, shall submit this Agreement to their respective shareholders for approval at a special meeting to be held as promptly as practicable following effectiveness of the Form S-4 and on the timing described in Section 5.1(e), and by approving execution of this Agreement the Board of Directors of Parent agrees that it shall, at the time any proxy statement soliciting approval of this Agreement and the transactions contemplated hereby is mailed to the stockholders of Parent, recommend that Parent’s stockholders vote for such approval, and it shall cause the Board of Directors of Newco to recommend that Newco’s stockholder vote for such approval; provided that Parent’s determination as to whether it shall submit this Agreement to its and/or Newco’s stockholders for approval shall be made prior to the initial filing of the Form S-4.
(e) The Company Company, Newco and Parent shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meetingtheir respective stockholders meeting, and shall use reasonable best efforts to hold each of such meetings within five business days of each other.
Appears in 1 contract
Sources: Merger Agreement (Partners Trust Financial Group Inc)
Additional Agreements. SECTION 5.1 6.01. Preparation of the Form S-4, S-4 and the Proxy Statement; Stockholders MeetingMeetings.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company and Parent shall prepare and file with the SEC the Proxy Statement in preliminary form and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus, and each of the Company and Parent shall use best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Each of Parent and the Company and Parent shall use all reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiariesCompany's shareholders, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and cause the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with to be mailed to Parent's stockholders, in each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in connection with the Merger and under the Company Stock Plans and the Company shall furnish all information concerning the Company and the holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such party or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger. If at any time prior to receipt of the Company Shareholder Approval or the Parent Stockholder Approval, there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company and Parent shall promptly prepare and mail to their respective stockholders such an amendment or supplement.
(b) The Company shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the "Company Stockholders Meeting in accordance with the DGCL Shareholders Meeting") for the purpose of obtaining seeking the Company Stockholder Approval and subject to Section 4.3Shareholder Approval. The Company shall, the Board of Directors of through the Company shall Board, recommend to its shareholders that they give the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation")Shareholder Approval. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d6.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in .
(c) Parent shall, as soon as practicable following the Company Recommendationdate of this Agreement, unless otherwise directed in writing by Parentduly call, this Agreement give notice of, convene and hold a meeting of its stockholders (the Merger shall be submitted to the stockholders of the Company at the Company "Parent Stockholders Meeting Meeting") for the purpose of approving seeking the Agreement Parent Stockholder Approval. Parent shall, through the Parent Board, recommend to its stockholders that they give the Parent Stockholder Approval. Without limiting the generality of the foregoing, Parent agrees that its obligations pursuant to the first sentence of this
Section 6.01 (c) shall not be affected by the commencement, public proposal, public disclosure or communication to Parent of any Parent Takeover Proposal.
(d) The Company shall use its best efforts to cause to be delivered to Parent a letter of Deloitte & Touche LLP ("D&T"), the Company's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to Parent, in form and substance reasonably satisfactory to Parent and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationForm S-4.
(e) The Company Parent shall coordinate and cooperate with Parent with respect use its best efforts to cause to be delivered to the timing Company a letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP ("AA"), Parent's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to the Company, in form and substance reasonably satisfactory to the Company Stockholders Meetingand customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Form S-4.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Section 6.01. (a) Preparation of the Form S-4Proxy Statement and Parent’s Stockholders Meeting. Parent shall use its reasonable best efforts to call, hold and convene a meeting of its stockholders to vote on the approval of the Note Satisfaction as soon as possible after the date hereof but in any event not later than the day before the Note Maturity Date (the “Parent Stockholders Meeting”). Subject to Section 6.01(b), the board of directors of Parent shall recommend to the Parent stockholders that the Parent stockholders vote to approve the Note Satisfaction (the “Recommendation”) and shall include such Recommendation in the Proxy Statement; . In connection with the Parents’ Stockholders Meeting.
(a) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC as soon as reasonably practicable, but in any event, not later than 45 days after the Form S-4, in which date hereof the Proxy Statement will be included as a prospectus. Each of in preliminary form, and Parent and the Company shall use all its reasonable best efforts to have the Form S-4 declared effective under the Securities Act respond as promptly as practicable after such filingto any comments of the SEC with respect thereto. The Company Parent shall use its reasonable best efforts to prepare and file with the SEC the definitive Proxy Statement and to cause the definitive Proxy Statement to be mailed to holders of Company Common Stock Parent’s stockholders as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to filing of the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the definitive Proxy Statement or (ii) with the SEC. Parent shall take any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is action required to be described taken under any applicable state securities Laws in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed connection with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Note Satisfaction. Parent shall promptly notify the other Stockholders Representative promptly of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests request by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby Proxy Statement or for additional information and shall supply the other Stockholders Representative with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government officialstaff, on the other hand, with respect to the Proxy Statement. Prior to filing or mailing the preliminary or definitive Proxy Statement (or any amendment or supplement thereto. The Company and Parent shall use their respective reasonable best efforts ) or responding to respond to any the comments of the SEC with respect thereto, Parent (i) shall provide the Stockholders Representative a reasonable opportunity to review such document or response and (ii) shall consider in good faith comments proposed by the Form S-4 and the Proxy Statement as promptly as practicableStockholders Representative on such document or response. The Company and Parent Stockholders Representative shall cooperate with each other and provide to each other furnish all information necessary as may reasonably be requested by Parent in order to prepare connection with the Form S-4 preparation, filing and distribution of the Proxy Statement, . This Section 6.01(a) and Section 6.01(b) below shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable apply from and after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationEffective Time.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Authentec Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form PREPARATION OF THE FORM S-4, Proxy StatementJOINT PROXY STATEMENT; Stockholders MeetingSTOCKHOLDERS MEETINGS.
(a) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare prepare, and Parent shall file with the SEC SEC, the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act Act, and for the Joint Proxy Statement to be cleared under the Exchange Act, as promptly as practicable after such filing. Without limiting any other provision hereinabove contained, the Form S-4 and the Joint Proxy Statement will contain, without limitation, such information and disclosure reasonably requested by either Parent or the Company so that (i) the Form S-4 conforms in both form and substance to the requirements of the Securities Act, and (ii) the Joint Proxy Statement conforms in both form and substance to the requirements of the Exchange Act. The Company and Parent shall each use reasonable best efforts to cause the Joint Proxy Statement to be mailed to holders of Company Common Stock and Parent Common Stock, respectively, as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiariesSubsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Joint Proxy Statement or (ii) any event with respect to ParentParent or its Subsidiaries, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Joint Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplementsupplement to, to the Form S-4 or the Joint Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of CompanyCompany and Parent.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and the other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Joint Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Joint Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Each of the Company and Parent shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting and Parent Stockholders Meeting, respectively, in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject Parent Stockholder Approval, respectively, and each shall coordinate with the other regarding the timing of such meetings.
(e) Subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company RecommendationCOMPANY RECOMMENDATION"); provided, however, that the Company's Board of Directors shall not be required to make such Company Recommendation to the extent that it is permitted to effect a Change in the Company Recommendation pursuant to Section 4.3. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d5.1(e) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation, provided, however, that if the Board of Directors of the Company shall have effected a Change in the Company Recommendation in accordance with this Agreement, then in submitting this Agreement to the Company's stockholders, the Board of Directors of the Company may submit this Agreement to the Company's stockholders without recommendation (although the resolutions adopting this Agreement and the Plan of Merger as of the date hereof may not be rescinded or amended), in which event the Board of Directors of the Company may communicate the basis for its lack of a recommendation to the Company's stockholders in the Joint Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law.
(ef) The Company Board of Directors of Parent shall coordinate use its reasonable best efforts to obtain the Parent Stockholder Approval and cooperate with Parent with respect to recommend to Parent's stockholders the timing approval and adoption of this Agreement, the Company Stockholders MeetingMerger and the other transactions contemplated hereby (the "PARENT RECOMMENDATION").
Appears in 1 contract
Additional Agreements. SECTION 5.1 Section 6.01. Preparation of the Form S-4, Proxy StatementStatement and Schedule 13E-3; Stockholders Company Shareholders Meeting.
(a) As reasonably promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and cause to be filed with the SEC a proxy statement to be sent to the Company’s shareholders relating to the Company Shareholders Meeting (together with any amendments or supplements thereto, the “Proxy Statement”). Parent shall furnish all information concerning Parent and its Affiliates to the Company, and provide such other assistance, as may be reasonably requested in connection with the preparation, filing and distribution of the Proxy Statement, and the Proxy Statement shall include all information reasonably requested by the Company to be included therein. The Company shall reasonably promptly notify Parent upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC, on the other hand. The Company shall use its reasonable best efforts to respond as reasonably promptly as practicable to any comments from the SEC with respect to the Proxy Statement, and Parent will cooperate in connection therewith. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent an opportunity to review and comment on the Proxy Statement or response (including the proposed final version of the Proxy Statement or response) and (ii) shall consider in good faith all comments proposed by Parent.
(b) The Company and Parent shall cooperate to (i) concurrently with the preparation and filing of the Proxy Statement, jointly prepare and file with the SEC a Rule 13E-3 Transaction Statement on Schedule 13E-3 (together with any amendments thereof or supplements thereto, the Form S-4“Schedule 13E-3”) relating to the transactions contemplated by this Agreement, and furnish to each other all information concerning such party as may be reasonably requested in which connection with the Proxy Statement preparation of the Schedule 13E-3, (ii) respond as reasonably promptly as practicable to any comments received from the SEC with respect to the Schedule 13E-3 and will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts consult with each other prior to have the Form S-4 declared effective under the Securities Act providing such response, (iii) as promptly as practicable after reasonably practicable, prepare and file any amendments or supplements necessary to be filed in response to any such filing. The Company shall comments, (iv) use reasonable best efforts to cause have cleared by the Proxy Statement staff of the SEC the Schedule 13E-3 and (v) to be mailed to holders of Company Common Stock the extent required by applicable Law, as promptly as reasonably practicable after prepare and file any supplement or amendment to the Form S-4 is declared effectiveSchedule 13E-3. Each party shall reasonably promptly notify the other parties upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Schedule 13E-3 and shall provide the other parties with copies of all correspondence between such party and its Representatives, on the one hand, and the SEC, on the other hand.
(bc) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or change occurs with respect to information supplied by Parent or its Affiliates for inclusion in the Form S-4 Proxy Statement or the Proxy Statement, in either case, Schedule 13E-3 which event is required to be described in an amendment of, or a supplementsupplement to, the Proxy Statement or the Schedule 13E-3, Parent shall reasonably promptly notify the Company of such change, and Parent and the Company shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 Proxy Statement or the Proxy StatementSchedule 13E-3, such event shall be so describedas applicable, and as required by Law, in disseminating the information contained in such amendment or supplement to the Company’s shareholders. Nothing in this Section 6.01(c) shall limit the obligations of any party under Section 6.01(a).
(d) If prior to the Effective Time any event occurs with respect to the Company or any Company Subsidiary, or any change occurs with respect to other information supplied by the Company for inclusion in the Proxy Statement or the Schedule 13E-3, which is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Schedule 13E-3, the Company shall reasonably promptly filed notify Parent of such event, and the Company shall as reasonably promptly as practicable file any necessary amendment or supplement to the Proxy Statement or the Schedule 13E-3, as applicable, with the SEC and, as required by lawLaw, disseminated disseminate the information contained in such amendment or supplement to the stockholders Company’s shareholders. Nothing in this Section 6.01(d) shall limit the obligations of Companyany party under Section 6.01(a).
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(de) The Company shall, as promptly as reasonably practicable after the Form S-4 is declared effective under SEC confirms it has no further comments on the Securities ActProxy Statement and the Schedule 13E-3, duly call, give notice of, convene and hold the Company Stockholders Shareholders Meeting in accordance with the DGCL for the purpose of obtaining (i) seeking the Company Stockholder Approval Shareholder Approval; and (ii) in accordance with Section 14A of the Exchange Act and the applicable SEC rules issued thereunder, seeking advisory approval of a proposal to the Company’s shareholders for a non-binding, advisory vote to approve certain compensation that may become payable to the Company’s named executive officers in connection with the completion of the Merger. The Company shall use its reasonable best efforts to (i) cause the Proxy Statement to be mailed to the Company’s shareholders; and (ii) subject to Section 4.35.04(d), the Board of Directors of solicit the Company shall Shareholder Approval. The Company shall, through the Company Board, recommend to its shareholders that they give the Company's stockholders Company Shareholder Approval (the approval “Company Recommendation”) and adoption of this Agreement, shall include such recommendation in the Merger Proxy Statement and the other transactions contemplated hereby (Schedule 13E-3, in each case, except to the "extent that the Company Recommendation"Board shall have made an Adverse Recommendation Change as permitted by Section 5.04(d). Without limiting the generality of the foregoingThe Company agrees that, unless this Agreement is terminated in accordance with its terms prior thereto, its obligations to hold the Company agrees that its obligations Shareholders Meeting pursuant to the first sentence of this Section 5.1(d) 6.01 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Alternative Proposal. Notwithstanding , by the making of any Adverse Recommendation Change in by the Company RecommendationBoard or by any other development; provided, unless otherwise directed in writing however, that if the public announcement of an Adverse Recommendation Change or the delivery of notice by Parentthe Company to Parent pursuant to Section 5.04(d)(i) occurs less than 10 Business Days prior to the Company Shareholders Meeting, this Agreement and the Merger Company shall be submitted entitled to postpone the Company Shareholders Meeting to a date not more than 10 Business Days after the date such Company Shareholders Meeting had previously been scheduled (but in no event to a date after the date that is five Business Days before the End Date).
(f) The Company may, with Parent’s consent (such consent not to be unreasonably withheld, conditioned or delayed), adjourn, recess, reconvene or postpone the Company Shareholders Meeting if (x) the Company reasonably believes that (i) such adjournment, recess, reconvening or postponement is necessary to ensure that any required supplement or amendment to the stockholders Proxy Statement or the Schedule 13E-3 is provided to the holders of Company Shares within a reasonable amount of time in advance of the Company at Shareholders Meeting, (ii) after consultation with Parent, as of the time for which the Company Stockholders Shareholders Meeting for is then scheduled (as set forth in the purpose Proxy Statement), (A) there will be an insufficient number of approving Company Shares present (either in person or by proxy) to constitute a quorum necessary to conduct the Agreement and the Merger and nothing contained herein shall be deemed to relieve business of the Company Shareholders Meeting or (B) there will be an insufficient number of proxies to obtain the Company Shareholder Approval, or (iii) such obligation.
adjournment, recess, reconvening or postponement is required by Law, or (ey) Parent reasonably requests such adjournment, recess, reconvening or postponement. The Company shall coordinate and cooperate keep Parent updated with Parent reasonable frequency with respect to the timing of the Company Stockholders Meetingproxy solicitation results.
Appears in 1 contract
Sources: Merger Agreement (Marubeni Corp /Fi)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, S-4 and the Proxy Statement; Stockholders MeetingMeetings.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company and Parent shall prepare and file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company and Parent shall use all reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall will use reasonable all best efforts to cause the Proxy Statement to be mailed to the holders of Company Common Stock and Company Preferred Stock as promptly as practicable after the Form S-4 is declared effective.
effective under the Securities Act. Parent shall also take any action (bother than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of the Parent Common Stock and the Parent New Preferred Stock in the Merger and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 or the Proxy Statement will be made by Parent or the Company without providing the other with the opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock and the Parent New Preferred Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time there shall occur (i) any event with respect information relating to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to information supplied by Parent for inclusion in any of the Form S-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in either caselight of the circumstances under which they were made, not misleading, the party which event is required to be described in discovers such information shall promptly notify the other parties hereto and an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, as to the extent required by law, disseminated to the stockholders of Companythe Company and Parent.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(db) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting Meeting") in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and and, subject to its rights to terminate this Agreement pursuant to Section 4.34.2(b), the shall, through its Board of Directors of the Company shall Directors, recommend to the Company's its stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation")hereby. Without limiting the generality of the foregoingforegoing but subject to its rights to terminate this Agreement pursuant to Section 4.2(b), the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d5.1(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Salomon Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy StatementPREPARATION OF THE PROXY STATEMENT; Stockholders Meeting.STOCKHOLDERS MEETING
(a) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filingStatement. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt Parent of any comments from the SEC or its staff or any other appropriate government official and of any requests by request from the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information Proxy Statement and shall supply the other with promptly provide copies of all correspondence between the Company or any of it and its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or and its staff or any other appropriate government officialstaff, on the other hand, with respect thereto. The Each of the Company and the Parent shall use their respective all commercially reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto and to the Form S-4 and cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicablepracticable after all such SEC comments have been resolved. The Company and Parent shall cooperate with each other and provide Notwithstanding the foregoing, prior to each other all information necessary in order to prepare the Form S-4 and filing or mailing the Proxy StatementStatement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, and the Company (i) shall provide promptly the Parent with a reasonable opportunity to review and comment on such document or response, (ii) shall include in such document or response all comments reasonably proposed by the Parent and (iii) shall not file or mail such document or respond to the other party any information such party may obtain that could necessitate amending any such documentSEC prior to receiving the Parent's approval, which approval shall not be unreasonably withheld, delayed or conditioned.
(db) The Company shall, as promptly as practicable after following the Form S-4 is declared effective under the Securities Actdate of this Agreement, establish a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (the Company Stockholders Meeting in accordance with the DGCL "STOCKHOLDERS MEETING") for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3Approval, regardless of whether the Board of Directors of the Company determines at any time that this Agreement or the Merger is no longer advisable or recommends that the stockholders of the Company reject this Agreement or the Merger, in all cases subject to its rights under Section 4.2(b). The Company shall recommend cause the Stockholders Meeting to be held as promptly as practicable following the Company's stockholders the approval and adoption date of this Agreement. The Company shall, through its Board of Directors, recommend to its stockholders that they adopt this Agreement, and shall include such recommendation in the Merger and the other transactions contemplated hereby (the "Company Recommendation"Proxy Statement, in each case subject to its rights under Section 4.2(b). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d5.1(b) to take actions to and hold the Stockholders Meeting for the purpose of obtaining Stockholder Approval shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal. Notwithstanding any Change .
(c) The Company agrees that none of the information included or incorporated by reference in the Proxy Statement will (except to the extent revised or superseded by amendments or supplements contemplated hereby), at the date the Proxy Statement is filed with the SEC or mailed to the Company's stockholders or at the time of the Stockholders Meeting, or at the time of any amendment or supplement thereof, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder.
(d) The Company Recommendationshall retain an agent, unless otherwise directed in writing by on terms or conditions acceptable to the Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing soliciting proxies on behalf of the Company for the Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Section 7.01 Preparation of the Form S-4, S-4 and Proxy Statement; Stockholders Meeting.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company shall prepare prepare, together with OptiCare, and Parent shall file with the SEC SEC, an proxy statement (the "Proxy Statement") in preliminary form and the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of , and Parent and the Company shall use all their reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Parent and the Company shall use their reasonable efforts to have the Form S-4 declared effective under by the Securities Act SEC as promptly as practicable after such filingfiling and to ensure that it complies in all material respects with the applicable provisions of the Securities Act and the Exchange Act. The Parent and the Company shall use reasonable best efforts to cause the Proxy Statement also take any other action required to be mailed to taken under any applicable federal and state securities laws in connection with the issuance of Parent Common Stock in the Merger and the Company and the Stockholders shall furnish all information concerning the Company and the holders of the Company Common Stock as promptly as practicable after may be reasonably requested in connection with the Form S-4 is declared effective.
(b) If at Proxy Statement or any time prior to the Effective Time there shall occur (i) any event with respect to such action. Parent, the Company and the Stockholders shall each be solely responsible for any statement, information or any of its subsidiaries, or with respect to other information supplied by Company for inclusion omission in the Form S-4 or the Proxy Statement or relating to it based upon information provided by it for inclusion therein.
(iib) If, at any time prior to the receipt of the Parent Stockholder Approval, any event occurs with respect to Parentthe Company or any Company Subsidiary, or any change occurs with respect to other information supplied by Parent the Company or any Stockholder for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplementsupplement to, to the Form S-4 or the Proxy Statement, the Company or such event Stockholder shall be so describedpromptly notify Parent of such event, and such the Company, the Stockholders and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement shall be promptly filed with to the SEC Form S-4 or the Proxy Statement and, as required by lawLaw, disseminated in disseminating the information contained in such amendment or supplement to the stockholders of CompanyParent's stockholders.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly soon as practicable after following the Form S-4 is declared effective under the Securities Actdate of this Agreement, duly call, give notice of, convene and hold an annual meeting of its stockholders (the Company "Parent Stockholders Meeting in accordance with the DGCL Meeting") for the purpose of obtaining of, among other things, seeking the Company Parent Stockholder Approval and subject Approval. Parent shall use its reasonable efforts to Section 4.3, cause the Board of Directors of the Company shall recommend Proxy Statement to the Companybe mailed to Parent's stockholders as promptly as practicable after the approval and adoption date of this Agreement. Parent shall, through the Merger and Parent Board, recommend to its stockholders that they give the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationParent Stockholder Approval.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Refac)
Additional Agreements. SECTION Section 5.1 Preparation of the Form S-4, S-4 Proxy Statement; Stockholders Meeting.
(a) Form S-4 Proxy Statement. As promptly soon as practicable following the date of this Agreement, Parent and the Company and Parent shall prepare and file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company and Parent shall use all reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use all reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the Company's stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene . Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the -34- Merger and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining shall furnish all information concerning the Company Stockholder Approval and subject to Section 4.3, the Board of Directors holders of the Company shall recommend Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to the Proxy Statement will be made by the Company's stockholders , in each case, without providing the approval other party and adoption its respective counsel the reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of this Agreementthe time when the Form S-4 has become effective or any supplement or amendment has been filed, the Merger and issuance of any stop order, the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality suspension of the foregoingqualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the Company agrees that its obligations pursuant SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication Effective Time any information relating to the Company or Parent, or any of any Company Takeover Proposal. Notwithstanding any Change in their respective affiliates, officers or directors, should be discovered by the Company Recommendationor Parent which should be set forth in an amendment or supplement to the Form S-4 or the Proxy Statement, unless otherwise directed so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in writing light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information must be promptly filed with the SEC and, to the extent required by ParentLaw, this Agreement and the Merger shall be submitted disseminated to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationCompany.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (CTS Corp)
Additional Agreements. SECTION 5.1 Preparation of S-4 and the Form S-4, Joint Proxy Statement; Stockholders Meeting.
(a) As promptly as practicable following the date of this Agreement, . Parent and the Company shall will, as promptly as practicable, (i) jointly prepare and will file with the SEC the Form S-4Joint Proxy Statement in connection with the votes of the stockholders of the Company and shareholders of Parent in respect of the Merger and other matters related thereto, and (ii) Parent will file with the SEC the S-4 in connection with the registration under the Securities Act of the shares of Parent Common Stock issuable upon conversion of the Shares and the other transactions contemplated hereby, in which the Joint Proxy Statement will be included as a prospectus. Each of Parent and the Company shall will, and will cause their accountants and lawyers to, use all their reasonable best efforts to have or cause the Form S-4 to be declared effective under the Securities Act as promptly as practicable after filing with the SEC, including causing their accountants to deliver necessary or required instruments such filing. The Company shall use reasonable best efforts to cause the Proxy Statement as opinions, consents and certificates, and will take any other action required or necessary to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company taken under federal or any of its subsidiaries, state securities Laws or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC otherwise in connection with the Merger and registration process (other transactions contemplated hereby than qualifying to do business in any jurisdiction which it is not now so qualified or for additional information and shall supply the other with copies filing a general consent to service of all correspondence between the Company or process in any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect theretojurisdiction). The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form receipt thereof, provide to the other party copies of any written comments and advise the other party of any oral comments in respect of the Joint Proxy Statement or the S-4 is declared effective under received from the Securities Act, duly call, give notice of, convene and hold staff of the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors SEC. Each of the Company shall recommend and Parent will provide the other with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement prior to filing with the SEC and will provide each other with a copy of all such filings with the SEC. Parent will provide the Company with a reasonable opportunity to review and comment on any amendment or supplement on the S-4 prior to filing with SEC and will provide the Company with a copy of all such filings with the SEC. Parent will advise the Company's stockholders , promptly after it receives notice thereof, of the approval and adoption of this Agreementtime when the Form S-4 has become effective or any supplement or amendment has been filed, the Merger and issuance of any stop order, the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality suspension of the foregoingqualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected or any request by the commencement, public proposal, public disclosure SEC for amendment of the Form S-4 or communication to comments thereon and responses thereto or requests by the Company of any Company Takeover ProposalSEC for additional information. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders Each of the Company and Parent will use its reasonable best efforts to cause the Joint Proxy Statement to be mailed to its stockholders at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationearliest practicable date.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 6.1. Preparation of the Form S-4, S-4 and Joint Proxy Statement; Stockholders MeetingMeetings.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Joint Proxy Statement and Parent shall file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Parent and the Company and Parent shall use all their reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Parent, Merger Sub and the Company shall use reasonable best efforts to cause will cooperate with each other in the preparation of the Joint Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after and the Form S-4 is declared effective.
(b) If at any time prior to S-4; without limiting the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each generality of the Company foregoing, Parent and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may beSub, on the one hand, and the SEC or its staff or any other appropriate government officialCompany, on the other hand, with respect thereto. The will furnish to each other the information relating to the party furnishing such information required by the Exchange Act or the Securities Act, as applicable, to be set forth in the Joint Proxy Statement and the Form S-4, and Company and Parent its counsel shall be given the opportunity to review and comment on the Joint Proxy Statement and the Form S-4 prior to the filing thereof with the SEC. Parent, Merger Sub and the Company each agree to use their respective its reasonable best efforts efforts, after consultation with the other parties hereto, to respond promptly to any comments of made by the SEC with respect to the Form S-4 Joint Proxy Statement and the Proxy Statement as promptly as practicableForm S-4. The Company and Parent shall cooperate with each other and provide will use their reasonable best efforts to each other all information necessary in order cause the Joint Proxy Statement to prepare the Form S-4 and the Proxy Statement, and shall provide promptly be mailed to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, their stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. No filing of, or amendment or supplement (including by incorporation by reference) to, or correspondence to the SEC or its staff with respect to, the Form S-4 or the Joint Proxy Statement will be made by Parent or the Company, without the approval of both parties, which approval shall not be unreasonably withheld or delayed; provided that with respect to documents filed by a party which are incorporated by reference in the Form S-4 or Joint Proxy Statement, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, or this Agreement or the transactions contemplated hereby. Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4, Joint Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and 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 stockholders of the Company and Parent.
(b) The Company shall, as soon as practicable after the date hereof, and in accordance with the Company's articles of incorporation and bylaws and applicable law, establish a record date (which will be as soon as practicable after the date hereof) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") solely for the purpose of considering and taking action upon this Agreement (it being understood that, notwithstanding anything to the contrary set forth in this Agreement, the Company shall have no obligation to convene the Company Stockholders Meeting unless the recommendation of the Board described in accordance with this Section 6.1(b) has been made and remains in effect). Once the DGCL Company Stockholders Meeting has been called and noticed, the Company shall not postpone or adjourn the Company Stockholders Meeting without the consent of Parent, which shall not be unreasonably withheld or delayed (other than (i) for the purpose absence of obtaining a quorum, (ii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which it believes in good faith is necessary under applicable law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company's stockholders prior to the Company Stockholder Approval and subject to Section 4.3Stockholders Meeting, or (iii) in the event the Board of Directors of the Company shall recommend to withdraws, modifies or changes in accordance with the Company's stockholders the approval and adoption terms of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees Agreement its recommendation that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger are in the best interests of the Company; provided that in the event that the Company Stockholders Meeting is delayed to a date after the Termination Date (as defined in Section 8.1(b)) as a result of either (i) or (ii) above, then the Termination Date shall be submitted extended to the fifth business day after such date). The Board of Directors of the Company shall declare that this Agreement and the Merger are advisable and in the best interests of the Company and recommend that this Agreement be approved by the stockholders of the Company at and include in the Form S-4 and the Joint Proxy Statement a copy of such recommendations; provided that the Board of Directors of the Company may withdraw, modify or change such recommendation if but only if (i) it believes in good faith, based on such matters as it deems relevant, and after receiving the advice of the Company's financial advisors, that a Superior Proposal (as defined in Section 6.10(b) hereof) has been made and (ii) it has determined in good faith, after consultation with outside counsel, that withdrawal, modification or change of such recommendation is, in the good faith judgment of the Board of Directors of the Company, required by the Board of Directors to comply with its fiduciary duties imposed by applicable law. Unless the Board of Directors of the Company has withdrawn its recommendation of this Agreement in compliance with this Section 6.1(b), the Company shall use its reasonable best efforts to solicit from stockholders of the Company proxies in favor of the adoption of this Agreement and shall take all other action necessary or advisable to secure the vote or consent of stockholders required by applicable law to effect the Merger.
(c) Parent shall, as soon as practicable after the date hereof, and in accordance with the Parent's certificate of incorporation and bylaws and applicable law, establish a record date (which will be as soon as practicable after the date hereof) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Parent Stockholders Meeting Meeting") for the purpose of approving considering and taking action upon the Agreement Share Issuance. Once the Parent Stockholders Meeting has been called and noticed, Parent shall not postpone or adjourn the Parent Stockholders Meeting without the consent of the Company, which shall not be unreasonably withheld or delayed (other than (i) for the absence of a quorum or (ii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which it believes in good faith is necessary under applicable law and for such supplemental or amended disclosure to be disseminated and reviewed by the Parent's stockholders prior to the Parent Stockholders Meeting; provided that in the event that the Parent Stockholders Meeting is delayed to a date after the Termination Date (as defined in Section 8.1(b)), then the Termination Date shall be extended to the fifth business day after such date). Parent shall, through its Board of Directors, recommend such approval by the stockholders of Parent and include in the Form S-4 and the Merger and nothing contained herein shall be deemed to relieve the Company Joint Proxy Statement a copy of such obligationrecommendation.
(d) The Company shall use all reasonable efforts to cause to be delivered to Parent a letter of KPMG LLP, the Company's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to Parent, in form and substance reasonably satisfactory to Parent and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Form S-4.
(e) The Company Parent shall coordinate and cooperate with Parent with respect use all reasonable efforts to cause to be delivered to the timing Company a letter of Ernst & Young LLP, the Company's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to the Company, in form and substance reasonably satisfactory to the Company Stockholders Meetingand customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Form S-4.
Appears in 1 contract
Additional Agreements. SECTION 5.1 a. Preparation of Form S-4 and the Form S-4, Proxy Statement; Stockholders Stockholders' ------------------------------------------------------------- Meeting.
(a) As promptly as practicable ; Charter Amendment. Promptly following the date of this -------------------------- Agreement, Parent and the Company shall prepare and file with the SEC the Proxy Statement and Acquiror shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company and Acquiror shall use all its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock the Company's stockholders, as promptly as practicable after the Form S-4 is declared effectiveeffective under the Securities Act. Acquiror shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or consenting to service of process in any jurisdiction in which it has not previously so consented in any action other than one arising out of the offering of the Media Stock and the Series D Preferred Stock in such jurisdiction) required to be taken to qualify the Media Stock and Series D Preferred Stock to be issued in the Merger under any applicable state securities or "blue sky" laws prior to the Effective Time, and the Company shall furnish all information concerning the Company and the holders of the Company Capital Stock as may be reasonably requested in connection with any such action.
i. None of the information supplied or to be supplied by the Company, on the one hand, or Acquiror, on the other hand, for inclusion or incorporation by reference in (bi) the Form S-4 will, at the time the Form S-4 is filed with the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Proxy Statement will, at the date it is first mailed to the stockholders of the Company or at the time of each Stockholders' Meeting (as defined in Section 7.1(d)), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement and the Form S-4 will comply as to form in all material respects with the requirements of the Exchange Act or the Securities Act, as the case may be. Notwithstanding the foregoing, (i) no representation is made by the Company with respect to statements made or incorporated by reference therein based on information supplied in writing by Acquiror specifically for inclusion or incorporation by reference in the Proxy Statement and (ii) no representation is made by Acquiror with respect to statements made or incorporated by reference therein based on information supplied in writing by the Company specifically for inclusion or incorporation by reference in the Form S-4.
ii. The Company and Acquiror shall cooperate with each other and provide to each other all information necessary in order to prepare the Proxy Statement and the Form S-4. The Company and Acquiror shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any requests by the SEC or its staff for amendments or supplements to the Form S-4 or the Proxy Statement or for additional information and shall supply the other parties with copies of all correspondence between the Company or any of its representatives, or Acquiror or any of its representatives, as the case may be, on the one hand, and the SEC or its staff, on the other hand, with respect thereto. The Company and Acquiror shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiariesSubsidiaries, or with respect to other information supplied by the Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to ParentAcquiror, or with respect to information supplied by Parent Acquiror for inclusion in the Form S-4 or the Proxy StatementS-4, in either case, case which event is required to be described in an amendment of, or a supplementsupplement to, to the Form S-4 or the Proxy StatementStatement or Form S-4, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of the Company.. Acquiror shall notify the Company promptly upon
(ci) Each the declaration by the SEC of the Company and Parent shall promptly notify the other effectiveness of the receipt Form S-4, (ii) the issuance or threatened issuance of any comments from stop order or other order preventing or suspending the SEC or its staff or any other appropriate government official and use of any requests prospectus relating to the Form S-4, (iii) any suspension or threatened suspension of the use of any prospectus relating to the Form S-4 in any state, (iv) any proceedings commenced or threatened to be commenced by the SEC or its staff any state securities commission that might result in the issuance of a stop order or other order or suspension of use or (v) any other appropriate government official for amendments or supplements to any of the filings with request by the SEC in connection with to supplement or amend any prospectus relating to the Merger and other transactions contemplated hereby or for additional information and shall supply Form S-4 after the other with copies of all correspondence between effectiveness thereof. Acquiror and, to the Company or any of its representativesextent applicable, or Parent or any of its representativesthe Company, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective its reasonable best efforts to respond to prevent or promptly remove any comments stop order or other order preventing or suspending the use of the SEC with respect any prospectus relating to the Form S-4 and to comply with any such request by the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide SEC or any state securities commission to each other all information necessary in order to prepare amend or supplement the Form S-4 and or the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such documentprospectus relating thereto.
(d) iii. The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Actpracticable, duly call, give notice of, convene and hold a meeting of its stockholders (the Company Stockholders Meeting in accordance with the DGCL "Initial Stockholders' Meeting") for the purpose of obtaining the Stockholder Approvals. The Company shall use its reasonable best efforts to hold such meeting as soon as practicable. In the event the Charter Amendment is not approved at the Initial Stockholders' Meeting, the Company shall, as promptly as practicable following the date of the Initial Stockholders' Meeting, duly call, give notice of, convene and hold another meeting of its stockholders (the "Additional Stockholders' Meeting" and, together with the Initial Stockholders' Meeting, collectively, the "Stockholders' Meetings" and individually, a "Stockholders' Meeting") for the purpose of obtaining the Stockholder Approval and subject Approvals. The Company shall, as promptly as practicable after the date of the Initial Stockholders' Meeting, hold the Additional Stockholders' Meeting. Subject to Section 4.3, the fiduciary duties of the Board of Directors of the Company shall under Applicable Laws and to Section 9.1(g), the Company shall, through the Board of Directors, recommend to the Company's its stockholders the approval and adoption of this Agreement, the Merger Charter Amendment and the other transactions contemplated hereby (and shall use its best efforts to solicit from stockholders proxies in favor of adoption of this Agreement and the "Company Recommendation")Charter Amendment and to take all other action necessary to secure the Stockholder Approvals at the Initial Stockholders' Meeting or the Additional Stockholders' Meeting, as the case may be. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence and third sentences of this Section 5.1(d7.1(d) shall not be affected altered by the commencement, public proposal, public disclosure proposal or communication to the Company of any Company Takeover ProposalAcquisition Proposal (as defined in Section 7.10).
iv. Notwithstanding any Change in Subject to receipt of the Stockholder Approvals, the Company Recommendationshall take all actions necessary to cause the Charter Amendment to be executed, unless otherwise directed in writing by Parent, this Agreement acknowledged and the Merger shall be submitted filed and to become effective no later than immediately prior to the stockholders of Effective Time in accordance with the Company DGCL as soon as practicable after the approval thereof at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationa Stockholders' Meeting.
(e) v. The Company shall coordinate and cooperate with Parent with respect make stock transfer records relating to the timing Company available to Acquiror to the extent reasonably necessary to effectuate the intent of the Company Stockholders Meetingthis Agreement.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form PREPARATION OF THE FORM S-4, Proxy StatementPROXY STATEMENT; Stockholders MeetingSTOCKHOLDERS MEETING.
(a) As promptly as practicable following the date of this Agreement, Parent Newco and the Company shall prepare prepare, and Newco shall file with the SEC SEC, the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent Newco and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act Act, and for the Proxy Statement to be cleared under the Exchange Act, as promptly as practicable after such filing. The Without limiting any other provision hereinabove contained, the Form S-4 and the Proxy Statement will contain, without limitation, such information and disclosure reasonably requested by either Newco or Company so that (i) the Form S-4 conforms in both form and substance to the requirements of the Securities Act, and (ii) the Proxy Statement conforms in both form and substance to the requirements of the Exchange Act. Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiariesSubsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to ParentNewco, or with respect to information supplied by Parent Newco for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplementsupplement to, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent Newco shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and the other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent Newco or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent Newco shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent Newco shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company RecommendationCOMPANY RECOMMENDATION"); provided, however, that Company's Board of Directors shall not be required to make such Company Recommendation to the extent that it is permitted to effect a Change in Company Recommendation pursuant to Section 4.3. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by ParentNewco, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation, provided, however, that if the Board of Directors of Company shall have effected a Change in Company Recommendation in accordance with this Agreement, then in submitting this Agreement to Company's stockholders, the Board of Directors of Company may submit this Agreement to Company's stockholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to Company's stockholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law. If required by applicable law or stock exchange requirements, or if Parent elects in its discretion to submit this Agreement to its stockholders or Newco stockholders for approval, Parent and/or Newco, as applicable, shall submit this Agreement to their respective shareholders for approval at a special meeting to be held as promptly as practicable following effectiveness of the Form S-4 and on the timing described in Section 5.1(e), and by approving execution of this Agreement the Board of Directors of Parent agrees that it shall, at the time any proxy statement soliciting approval of this Agreement and the transactions contemplated hereby is mailed to the stockholders of Parent, recommend that Parent's stockholders vote for such approval, and it shall cause the Board of Directors of Newco to recommend that Newco's stockholder vote for such approval; provided that Parent's determination as to whether it shall submit this Agreement to its and/or Newco's stockholders for approval shall be made prior to the initial filing of the Form S-4.
(e) The Company Company, Newco and Parent shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meetingtheir respective stockholders meeting, and shall use reasonable best efforts to hold each of such meetings within five business days of each other.
Appears in 1 contract
Sources: Merger Agreement (BSB Bancorp Inc)
Additional Agreements. SECTION 5.1 5.01. Preparation of the Form S-4, S-4 and Proxy Statement; Stockholders Stockholder Meeting.
(a) As promptly as practicable Promptly following the date of this Agreement, Parent and the Company shall prepare the Proxy Statement, and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectusincluded. Each of Parent and the Company shall each use all its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall will use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the Company's stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any state in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities laws in connection with the registration and qualification of the Parent Common Stock to be issued in the Merger, and the Company shall furnish all information relating to the Company and its stockholders as may be reasonably requested in connection with any such action. The information provided and to be provided by Parent, Sub and the Company, respectively, (i) for use in the Form S-4, at the time the Form S-4 becomes effective, shall be true and accurate in all material respects and shall not omit to state a material fact required to be stated therein or necessary to make such information not misleading and (ii) for use in the Proxy Statement, on the date the Proxy Statement is mailed to the Company's stockholders and on the date of the Stockholders Meeting referred to below, shall be true and correct in all material respects and shall not omit to state any material fact required to be stated therein or necessary in order to make such information, in the light of the circumstances under which the statements therein were made, not misleading, and the Company and Parent each agree to correct any information provided by it for use in the Form S-4 and the Proxy Statement which shall have become false or misleading.
(b) All mailings to the Company's stockholders in connection with the Merger, including the Proxy Statement, shall be subject to the prior review, comment and approval of Parent (such approval not to be unreasonably withheld or delayed).
(c) The Company will, as promptly as practicable following the date of this Agreement and in consultation with Parent, duly call, give notice of, convene and hold a meeting of its stockholders (the Company "Stockholders Meeting in accordance with the DGCL Meeting") for -------------------- the purpose of obtaining approving this Agreement and the transactions contemplated by this Agreement to the extent required by the DGCL. The Company will, through its Board of Directors, recommend to its stockholders approval of the foregoing matters, as set forth in Section 3.01(p); provided, however, that the Board of -------- ------- Directors of the Company Stockholder Approval and subject may fail to Section 4.3make or withdraw or modify such recommendation, but only to the extent that the Board of Directors of the Company shall recommend have concluded in good faith on the basis of written advice (or advice confirmed in writing) from outside counsel that the failure to take such action would be contrary to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality fiduciary duties of the foregoing, Board of Directors of the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at under applicable law. Any such recommendation, together with a copy of the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein opinion referred to in Section 3.01(o) shall be deemed to relieve included in the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.Proxy
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, 9.1 Proxy StatementStatement and Schedule 13E-3; Stockholders MeetingShareholder Approval.
(a) As promptly as practicable following after the date execution of this Agreement, Parent and the Company and Purchaser shall cooperate and promptly prepare and file with the SEC a proxy statement relating to the Form S-4meeting of the Company's shareholders to be held in connection with the Merger (together with any amendments thereof or supplements thereto, in which the "Proxy Statement"), a joint Rule 13e-3 Transaction Statement on Schedule 13E-3 (together with any amendments thereof or supplements thereto, the "Schedule 13E-3") with respect to the Merger. The respective parties shall cause the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall Schedule 13E-3 to comply as to form in all material respects with the applicable provisions of the Exchange Act, including Regulation 14A and Rule 13e-3. The respective Parties, after consultation with the other, will use all reasonable efforts to have respond to any comments made by the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts SEC with respect to cause the Proxy Statement and the Schedule 13E-3. Each of the Purchaser and the Company shall furnish to be mailed to each other all information concerning it and the holders of Company Common Stock its capital stock as promptly as practicable after the Form S-4 is declared effectiveother may reasonably request in connection with such actions and the preparation of the Proxy Statement and the Schedule 13E-3.
(b) No amendment or supplement to the Proxy Statement, the Schedule 13E-3 or any other SEC Document will be made by the Company without the reasonable approval of Purchaser. The Company will advise Purchaser, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement or any other SEC Document or comments thereon and responses thereto or requests by the SEC for additional information.
(c) Each of the Parties agrees to use its reasonable efforts to cooperate and to provide each other with such information as any of such parties may reasonably request in connection with the preparation of the Proxy Statement and the Schedule 13E-3. Each Party agrees promptly to supplement, update and correct any information provided by it for use in the Proxy Statement and the Schedule 13E-3 to the extent that it is or shall have become incomplete, false or misleading. If at any time prior to the Effective Time there shall occur (i) Time, any event with respect or circumstance relating to the Company Purchaser or any of its subsidiariesofficers and directors, should be discovered by Purchaser which should be set forth in an amendment or with respect supplement to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) the Schedule 13E-3, Purchaser shall promptly inform the Company. If at any time prior to the Effective Time, any event with respect or circumstance relating to Parentthe Company, or with respect to information supplied its officers or directors, should be discovered by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, Company which event is required to should be described set forth in an amendment of, or a supplement, supplement to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as or the Schedule 13E-3, the Company shall promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such documentinform Purchaser.
(d) The Company shall, as As promptly as practicable after the Form S-4 clearance of the Proxy Statement and the Schedule 13E-3 by the SEC, the Company shall mail the Proxy Statement to its shareholders (or, if the SEC chooses not to review the Proxy Statement and the Schedule 13E-3, within 10 days after the date that the SEC notifies the Company that it will not review the Proxy Statement). Subject to Sections 9.1(h) and 9.2, the Proxy Statement shall include the recommendation of the Board of Directors of the Company and the Special Committee thereof that approval of this Agreement, the Merger and the Amended and Restated Articles of Incorporation by the Company's shareholders is declared effective under advisable and that the Securities ActBoard of Directors of the Company and the Special Committee have determined that the Merger and the Amended and Restated Articles of Incorporation is fair to, and in the best interests of, the Company's shareholders.
(e) In accordance with the Company Articles of Incorporation and Company Bylaws, the Company shall duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL a Shareholders' Meeting, to be held as promptly as practicable after execution of this Agreement, on a date reasonably acceptable to Purchaser, for the purpose of voting upon approval of this (i) Agreement, (ii) the Amended and Restated Articles of Incorporation and (iii) the Merger by the Company's shareholders and such other related matters as it deems appropriate. The Company shall use its reasonable efforts to hold the Shareholders' Meeting as promptly as practicable after the date on which the Proxy Statement is cleared by the SEC.
(f) The Company shall use its best efforts to obtain the Company Shareholder Approval and the Disinterested Shareholder Approval, subject to the terms of Section 9.1(h) and 9.2.
(g) In connection with the Merger, the Company shall furnish Purchaser with mailing labels containing the names and addresses of all record holders of shares of Company Common Stock and with security position listings of shares of Company Common Stock held in stock depositories, each as of a recent date, and of those persons becoming record holders subsequent to such date. The Company shall furnish Purchaser with all such additional information (including, but not limited to, updated lists of holders of shares of Company Common Stock and their addresses, mailing labels and lists of security positions) and such other assistance as Purchaser or its agents may reasonably request in soliciting proxies and communicating the Merger to the record and beneficial owners of shares of Company Common Stock. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Proxy Statement and any other documents necessary to consummate the Merger, Purchaser shall hold in confidence the information contained in such labels, listings and files, and shall use such information only in connection with the Merger. If this Agreement is terminated, Purchaser will deliver to the Company all copies of such information (and extracts and summaries thereof) then in its or its agent's or advisor's possession.
(h) Neither the Board of Directors of the Company nor any committee thereof shall, except as expressly permitted by this Section 9.1(h), (i) withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a manner adverse to Purchaser, the approval or recommendation of such Board of Directors of this Agreement, the Amended and Restated Articles of Incorporation or the Merger, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Acquisition Proposal. Notwithstanding the foregoing, in the event that, prior to obtaining the Disinterested Shareholder Approval, the Special Committee determines in good faith, after it has received a Superior Proposal and after receipt of advice from outside counsel, that the failure to do so would result in a reasonable possibility that the Board of Directors of the Company Stockholder Approval and subject would breach its fiduciary duties to Section 4.3the Company's shareholders under applicable Law, the Board of Directors of the Company shall recommend may (subject to this sentence) inform the Company's stockholders shareholders that it no longer believes that the Merger is advisable and no longer recommends approval and adoption may (subject to this sentence) approve or recommend a Superior Proposal (and in connection therewith withdraw or modify its approval or recommendation of this Agreement, the Merger Amended and Restated Articles of Incorporation or the other transactions contemplated hereby Merger) (the a "Company RecommendationSubsequent Determination"). Without limiting , but only at a time that is after the generality second business day following Purchaser's receipt of written notice advising Purchaser that the Board of Directors of the foregoingCompany has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation, if in writing), identifying the person making such Superior Proposal and stating that it intends to make a Subsequent Determination. Notwithstanding any other provision of this Agreement, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, submit this Agreement and the Merger shall be submitted Amended and Restated Articles of Incorporation to its shareholders at its Shareholders' Meeting even if the stockholders Board of Directors of the Company determines at any time after the Company Stockholders Meeting for date hereof that it is no longer advisable or recommends that the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationCompany's shareholders reject it.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Ahl Services Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement4.1 PREPARATION OF FORM S-4 AND PROXY STATEMENT/PROSPECTUS; Stockholders MeetingINFORMATION SUPPLIED.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company Chancellor shall prepare and file with the SEC (i) a preliminary Proxy Statement/Prospectus and (ii) a Registration Statement on Form S-4 (the "Form S-4") with respect to the registration of the issuance of shares of Chancellor Common Stock in the Merger, in of which the Proxy Statement Statement/Prospectus will be included as form a prospectuspart. Each of Parent and the Company Chancellor shall use all its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company Chancellor shall use reasonable its best efforts to cause the Proxy Statement Statement/Prospectus to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, Chancellor's stockholders and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the LIN's stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Chancellor shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or take any action that would subject it to the service of process in suits, duly callother than as to matters and transactions relating to the Form S-4, give notice of, convene and hold the Company Stockholders Meeting in accordance any jurisdiction where it is not so subject) required to be taken under any applicable state securities laws in connection with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors issuance of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, Chancellor Common Stock in the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) LIN shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement furnish all information concerning itself and the Merger shall holders of shares of LIN Common Stock as may be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of reasonably requested in connection with any such obligationaction.
(eb) The Company shall coordinate LIN agrees and cooperate represents and warrants that the information supplied or to be supplied by it specifically for inclusion or incorporation by reference in the (i) Form S-4 will not, at the time the Form S-4 is filed with Parent the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, or (ii) the Proxy Statement/Prospectus will not, at the date it is first mailed to Chancellor's stockholders or at the time of the Chancellor Stockholders Meeting (as defined in Section 4.2), contain any statement which, at the time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the timing solicitation of a proxy for the same meeting or subject matter thereof which has become false or misleading.
(c) Chancellor agrees and represents and warrants that the information supplied or to be supplied by it specifically for inclusion or incorporation by reference in (i) the Form S-4 will not, at the time the Form S-4 is filed with the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the Company circumstances under which they are made, not misleading, or (ii) the Proxy Statement/Prospectus will not, at the date it is first mailed to Chancellor's stockholders or at the time of the Chancellor Stockholders Meeting, contain any statement which, at the time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject matter thereof which has become false or misleading. Chancellor agrees that the Form S-4 will comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations promulgated thereunder and Chancellor agrees that the Proxy Statement/Prospectus will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder, except in each case with respect to statements made or incorporated by reference in the Form S-4 or the Proxy Statement/Prospectus supplied by LIN specifically for inclusion or incorporation by reference therein as to which Chancellor assumes no responsibility.
Appears in 1 contract
Sources: Merger Agreement (Chancellor Media Corp of Los Angeles)
Additional Agreements. SECTION 5.1 Preparation The Company agrees that, upon --------------------- the occurrence and during the continuance of a Default hereunder, it will, at any time and from time to time, upon the written request of the Form S-4Trustee, Proxy Statement; Stockholders Meeting.
use its best efforts to take or to cause the issuer of the Pledged Shares and any other securities distributed in respect of the Pledged Shares (a) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file collectively with the SEC Pledged Shares, the Form S-4"Pledged Securities") to take such action and prepare, distribute or file such documents, as are required or advisable in which the Proxy Statement will be included as a prospectus. Each reasonable opinion of Parent and counsel for the Company shall use all reasonable efforts Trustee to have permit the Form S-4 declared effective under the Securities Act as promptly as practicable after public sale of such filingPledged Securities. The Company shall use further agrees to indemnify, defend and hold harmless the Trustee, each Holder, any underwriter and their respective officers, directors, affiliates and controlling persons from and against all loss, liability, expenses, costs of counsel (including reasonable best efforts fees and expenses of legal counsel to cause the Proxy Statement Trustee), and claims (including the costs of investigation) that they may incur insofar as such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact required to be mailed stated therein or necessary to holders of Company Common Stock make the statements in any thereof not misleading, except insofar as promptly as practicable after the Form S-4 is declared effective.
(b) If at same may have been caused by any time prior to the Effective Time there shall occur (i) any event with respect untrue statement or omission based upon information furnished in writing to the Company or the issuer of such Pledged Securities by the Trustee or any of Holder expressly for use therein. The Company further agrees, upon such written request referred to above, to use its subsidiariesbest efforts to qualify, file or register, or with respect cause the issuer of such Pledged Securities to other information supplied by Company for inclusion in the Form S-4 qualify, file or the Proxy Statement or (ii) any event with respect to Parentregister, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with Pledged Securities under the SEC in connection with Blue Sky or other securities laws of such states as may be requested by the Merger Trustee and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representativeskeep effective, or Parent cause to be kept effective, all such qualifications, filings or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect theretoregistrations. The Company will bear all costs and Parent shall use their respective reasonable best efforts to respond to any comments expenses of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicablecarrying out its obligations under this Section 10.13. The Company and Parent shall cooperate with each other and provide acknowledges that there is no adequate remedy at law for failure by it to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance comply with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence provisions of this Section 5.1(d) shall 10.13 and that such failure would not be affected by the commencementadequately compensable in damages, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change and therefore agree that their agreements contained in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall Section 10.13 may be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationspecially enforced.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Indenture (Rev Holdings Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement; Stockholders MeetingSection 6.1 PREPARATION OF FORM S-4 AND THE PROXY STATEMENT/PROSPECTUS.
(a) As promptly as practicable following after the date execution of this Agreement, Parent and the Company and Parent shall cooperate with each other regarding, and, prepare and file with the SEC SEC, a proxy statement/prospectus (together with any amendments thereof or supplements thereto, the “Proxy Statement/Prospectus”) relating to the meeting of the Company’s stockholders to be held to consider approval of the Merger (the “Company Voting Proposal”), and Parent shall prepare and file a registration statement on Form S-4, S-4 (in which the Proxy Statement Statement/Prospectus will be included included) pursuant to which the issuance of Parent Common Shares, if any, to be issued in the Merger will be registered under the Securities Act (the “Registration Statement”). Subject to the provisions of Section 6.4, the Proxy Statement/Prospectus shall include the recommendation of the Company Board to the stockholders of the Company in favor of approval this Agreement and the Merger (the “Company Recommendation”). The Company and Parent will cause the Proxy Statement/Prospectus and the Registration Statement to comply as a prospectusto form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations thereunder. Each of Parent and the Company shall use all reasonable efforts to have or cause the Form S-4 declared Proxy Statement/Prospectus to be cleared by the SEC and to cause the Registration Statement to become effective under the Securities Act as promptly as practicable after such filingpracticable. The Without limiting the generality of the foregoing, each of the Company and Parent shall cause its respective officers, directors, employees, financial advisors, agents or other representatives (“Representatives”) to fully cooperate with the other party and its respective Representatives in the preparation of the Proxy Statement/Prospectus and the Registration Statement, and shall, upon request, furnish the other party with all information concerning it and its Affiliates as the other may deem reasonably necessary or advisable in connection with the preparation of the Proxy Statement/Prospectus and the Registration Statement. Parent shall use commercially reasonable best efforts to cause take all actions required under any applicable federal or state securities or Blue Sky Laws in connection with the Proxy Statement issuance of Parent Common Shares pursuant to be mailed to holders of Company Common Stock as the Merger, if any, and will pay all filing fees incident thereto. As promptly as practicable after the Form S-4 is declared Registration Statement becomes effective, the Company shall cause the Proxy Statement/Prospectus to be mailed to its stockholders.
(b) If at any time Without limiting the generality of the foregoing, prior to the Effective Time there shall occur (i) the Company and Parent shall notify each other as promptly as practicable upon becoming aware of any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, circumstance which event is required to should be described in an amendment of, or a supplementsupplement to, to the Form S-4 or the Proxy Statement, such event shall be so described/Prospectus or the Registration Statement, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(cii) Each of the Company and Parent shall promptly each notify the other as promptly as practicable after the receipt by it of any written or oral comments of the receipt SEC on, or of any comments from the SEC written or its staff or any other appropriate government official and of any requests oral request by the SEC or its staff or any other appropriate government official for amendments or supplements to any of to, the filings with Proxy Statement/Prospectus or the SEC in connection with the Merger and other transactions contemplated hereby or for additional information Registration Statement, and shall promptly supply the other with copies of all correspondence between the Company it or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, Representatives and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to any of the Form S-4 and foregoing filings.
(c) Prior to the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and mailing of the Proxy Statement/Prospectus, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with shall designate The ▇▇▇▇▇▇ Group or another agent reasonably acceptable to Parent to act as the DGCL solicitor for the purpose of obtaining soliciting proxies from the Company Stockholder Approval and subject to Section 4.3, Company’s stockholders for the Board of Directors approval of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Voting Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Inland Retail Real Estate Trust Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement; Stockholders MeetingSection 6.01. Schedule 13E-3.
(a) As promptly soon as practicable following the date of this Agreement, the Company, THL and Parent and the Company shall jointly prepare and file cause to be filed with the SEC a Rule 13e-3 transaction statement on Schedule 13E-3 (such Schedule 13E-3, as amended or supplemented, being referred to herein as the Form S-4, in which the Proxy Statement will be included as a prospectus“Schedule 13E-3”). Each of the Company, THL and Parent shall use its reasonable best efforts to ensure that the Schedule 13E-3 will comply in all material respects with the requirements of the Exchange Act and the Company rules and regulations promulgated thereunder. Each of the Company, THL and Parent shall use all its reasonable best efforts to have respond promptly to any comments of the Form S-4 declared effective under SEC with respect to the Securities Act Schedule 13E-3. Each of the Company, THL and Parent shall furnish all information concerning such party to the others as promptly as practicable after such filingmay be reasonably requested in connection with the preparation, filing and distribution of the Schedule 13E-3 and the resolution of comments from the SEC. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) promptly, and in any event with respect to the Company or any of its subsidiarieswithin twenty-four (24) hours, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company notify THL and Parent shall promptly notify the other of upon the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by request from the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information Schedule 13E-3 and shall supply the other provide THL with copies of all correspondence between the Company or any of and its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or and its staff or any other appropriate government officialstaff, on the other hand, with respect . Prior to filing or mailing the Schedule 13E-3 (or any amendment or supplement thereto. The Company and Parent shall use their respective reasonable best efforts to respond ) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide THL and Parent a reasonable period of time to the Form S-4 review and the Proxy Statement as promptly as practicablecomment on such document or response and (ii) shall consider in good faith any comments reasonably proposed by THL and Parent. The Company THL and Parent shall cooperate provide reasonable assistance and cooperation to the Company in the preparation, filing and mailing/distribution of the Schedule 13E-3 and the resolution of comments from the SEC.
(b) Each of the Company, THL and Parent agrees, as to itself and its respective Affiliates or Representatives, that none of the information supplied or to be supplied by the Company, THL or Parent, as applicable, expressly for inclusion or incorporation by reference in the Schedule 13E-3 or any other documents filed or to be filed with each other and provide the SEC in connection with the Transactions, will, as of the time such documents (or any amendment thereof or supplement thereto) are mailed to each other all information the holders of Shares, contain any untrue statement of a material fact, or omit to state a material fact required to be made therein, or necessary in order to prepare make the Form S-4 statements made, in the light of the circumstances under which they were made, not misleading. Each of the Company, THL and Parent further agrees that all documents that such party is responsible for filing with the Proxy StatementSEC in connection with the Merger will comply as to form and substance in all material respects with the applicable requirements of the Securities Act, the Exchange Act, and any other applicable Laws and that all information supplied by such party for inclusion or incorporation by reference in such document will not contain any untrue statement of a material fact, or omit to state a material fact required to be made therein, or necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. If at any time prior to the Effective Time, any event or circumstance relating to the Company, THL or Parent, or their respective Affiliates, officers or directors, should be discovered that should be set forth in an amendment or a supplement to the Schedule 13E-3 so that such document would not include any misstatement of a material fact or omit to state a material fact required to be made therein, or necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, the party discovering such event or circumstance shall provide promptly inform the other parties and an appropriate amendment or supplement describing such event or circumstance shall be promptly filed with the SEC and disseminated to the shareholders of the Company to the extent required by Law; provided that prior to such filing, the Company and THL, as the case may be, shall consult with each other with respect to such amendment or supplement and shall afford the other party any information such party may obtain that could necessitate amending any such documentand their Representatives a reasonable opportunity to comment thereon.
(dc) The Company shall, as promptly As soon as practicable after the Form S-4 is declared effective under SEC staff confirms that it has no further comments on the Securities ActSchedule 13E-3 but in any event no later than five (5) Business Days after such confirmation, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL shall (i) establish a record date for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors determining shareholders of the Company to whom the Schedule 13E-3 will be mailed/distributed (the “Record Date”) and shall recommend not change such Record Date unless required to do so by applicable Law; (ii) mail/distribute or cause to be mailed/distributed the Schedule 13E-3 to the Company's stockholders the approval and adoption holders of this AgreementShares, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality including Shares represented by ADSs, as of the foregoing, Record Date; and (iii) instruct the Company agrees that its obligations pursuant Depositary to (A) fix the first sentence Record Date as the record date for determining the holders of this Section 5.1(dADSs to whom the Schedule 13E-3 will be mailed/distributed and (B) shall not be affected by provide the commencement, public proposal, public disclosure or communication Schedule 13E-3 to the Company all such holders of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationADSs.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Sogou Inc.)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy StatementSection 7.1 PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT/PROSPECTUS; Stockholders MeetingSTOCKHOLDERS MEETINGS.
(a) As promptly as practicable following the date of this Agreementhereof, Parent and the Company shall jointly prepare and file with the SEC mutually acceptable preliminary proxy materials and any amendments or supplements thereof which shall constitute the joint proxy statement/prospectus relating to the matters to be submitted to the holders of the Company's Common Stock at the Company's Stockholders Meeting and the holders of the Parent Common Stock at the Parent's Stockholders Meeting (such proxy statement/prospectus, and any amendments or supplements thereto (the "JOINT PROXY STATEMENT/PROSPECTUS"), and Parent shall prepare and file with the SEC the Registration Statement on Form S-4 with respect to (i) the issuance of Parent Common Stock in the Merger (the "FORM S-4, ") in which the Joint Proxy Statement Statement/Prospectus will be included as a prospectusprospectus and (ii) the amendments to its Certificate of Incorporation referred to in SECTION 3.1(A). The Form S-4 and the Joint Proxy Statement/Prospectus shall comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act. Each of Parent and the Company shall use all reasonable efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts filing it with the SEC and to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after keep the Form S-4 effective as long as is declared effective.
(b) If at any time prior necessary to consummate the Effective Time there Merger. The parties shall occur (i) any event promptly provide copies to each other, consult with each other and jointly prepare written responses with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any written comments received from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Joint Proxy Statement as Statement/Prospectus and promptly as practicableadvise the other party of any oral comments received from the SEC. The parties shall cooperate and provide the other with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and Form S-4 prior to filing such with the SEC and will provide each other with a copy of all such filings made with the SEC. Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation of reference) to the Joint Proxy Statement/Prospectus or Form S-4 shall be made without the approval of both parties, which approval shall not be unreasonably withheld or delayed. Parent agrees that none of the information supplied or to be supplied by Parent for inclusion or incorporation by reference in the Joint Proxy Statement/Prospectus and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Company Stockholders Meeting or the Parent Stockholders Meeting, will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees that none of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Joint Proxy Statement/Prospectus and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Company Stockholders Meeting or the Parent shall cooperate with each other Stockholders Meeting, will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. For purposes of the foregoing, it is understood and provide agreed that information concerning or related to each other all information necessary in order to prepare the Form S-4 Parent, its Subsidiaries and the Proxy Statement, Parent Stockholders Meeting will be deemed to have been supplied by Parent and shall provide promptly information concerning or related to the other party any information such party may obtain that could necessitate amending any such documentCompany, its Subsidiaries and the Company Stockholders Meeting shall be deemed to have been supplied by the Company.
(db) The Company shall, as promptly as practicable after following the Form S-4 is declared effective under the Securities Actexecution of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the Company Stockholders Meeting in accordance with the DGCL "COMPANY STOCKHOLDERS MEETING") for the purpose of obtaining the required Company Stockholder Approval. The Company shall use its reasonable efforts to obtain the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, Agreement by the Merger and stockholders of the other transactions contemplated hereby (the "Company Recommendation")Company. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence two sentences of this Section 5.1(dSECTION 7.1(B) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal. Notwithstanding any Change in Acquisition Proposal or Company Superior Proposal or (ii) the Company Recommendation, unless otherwise directed in writing withdrawal or modification by Parent, this Agreement and the Merger shall be submitted to the stockholders Board of Directors of the Company at or any committee thereof of such Board's or committee's approval or recommendation of the Company Stockholders Meeting Merger or this Agreement.
(c) Parent shall, as promptly as practicable following the execution of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "PARENT STOCKHOLDERS MEETING") for the purpose of approving obtaining the required Parent Stockholder Approval. Parent shall use its reasonable efforts to obtain the Parent Stockholder Approval and the Board of Directors of Parent shall recommend approval by the stockholders of Parent of matters constituting the Parent Stockholder Approval. Without limiting the generality of the foregoing, Parent agrees that its obligations pursuant to the first two sentences of this SECTION 7.1(C) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to Parent or any other person of any Parent Acquisition Proposal or Parent Superior Proposal or (ii) the withdrawal or modification by the Board of Directors of Parent or any committee thereof of such Board's or committee's approval or recommendation of the Merger or this Agreement.
(d) Merger Sub shall, immediately following execution of this Agreement, submit this Agreement to Parent, as the sole stockholder of Merger Sub, for adoption and approval. Upon such submission, Parent, as sole stockholder of Merger Sub, shall adopt this Agreement and approve the transactions contemplated by this Agreement by unanimous written consent in lieu of a meeting in accordance with the requirements of the DGCL and the Certificate of Incorporation and Bylaws of Merger and nothing contained herein shall be deemed to relieve the Company of such obligationSub.
(e) The Company Stockholders Meeting and the Parent Stockholders Meeting shall coordinate and cooperate with Parent with respect take place on the same date to the timing of the Company Stockholders Meetingextent practicable.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement/Prospectus; Stockholders MeetingRegistration Statement; Other Filings; Board Recommendations.
(a) As promptly as practicable following after the date execution of this Agreement, Company and Parent will prepare, and file with the Company shall SEC, the Proxy Statement/Prospectus, and Parent will prepare and file with the SEC the Form S-4, S-4 in which the Proxy Statement Statement/Prospectus will be included as a prospectus. Each of Parent and the Company shall provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Proxy Statement/Prospectus and the S-4, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Proxy Statement/Prospectus and the S-4. Each of Company and Parent will respond to any comments of the SEC, and will use all its respective commercially reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The , and Company shall use reasonable best efforts to will cause the Proxy Statement Statement/Prospectus to be mailed to holders of Company Common Stock as its shareholders at the earliest practicable time after the S-4 is declared effective by the SEC. As promptly as practicable after the Form S-4 is declared effective.
(b) If at date of this Agreement, each of Company and Parent will prepare and file any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is filings required to be described filed by it under the Exchange Act, the Securities Act or any other Federal, foreign or Blue Sky or related securities laws in an amendment of, or a supplement, order to consummate the Form S-4 or Merger and the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with transactions contemplated by this Agreement (the SEC and, as required by law, disseminated to the stockholders of Company.
(c) "OTHER FILINGS"). Each of the Company and Parent shall promptly will notify the other of promptly upon the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests request by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with S-4, the SEC in connection with the Merger Proxy Statement/Prospectus and other transactions contemplated hereby or for additional information and shall will supply the other with copies of all correspondence between the Company such party or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government officialstaff, on the other hand, with respect theretoto the S-4, the Proxy Statement/Prospectus or the Merger. The Each of Company and Parent shall use their respective reasonable best efforts to respond to any comments of will cause all documents that it is responsible for filing with the SEC under this Section 5.1(a) to comply in all material respects with respect to the Form S-4 all applicable requirements of law and the Proxy Statement as promptly as practicablerules and regulations promulgated thereunder. The Company and Parent shall cooperate with each other and provide Whenever any event occurs which is required to each other all information necessary be set forth in order an amendment or supplement to prepare the Form S-4 and the Proxy Statement/Prospectus or the S-4, and shall provide Company or Parent, as the case may be, will promptly to inform the other party any information of such party may obtain that could necessitate amending any occurrence and cooperate in filing with the SEC or its staff, and/or mailing to shareholders of Company, such documentamendment or supplement.
(db) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject Subject to Section 4.35.2(c) below, the Proxy Statement/Prospectus will include the recommendation of the Board of Directors of the Company shall recommend to the Company's stockholders the in favor of approval and adoption of this Agreement, the Agreement of Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality approval of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationMerger.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 5.01. Preparation of the Form S-4, F-4 and the Proxy Statement; Stockholders Company Stockholders' Meeting.
(a) As promptly soon as practicable following the date of this Agreement, the Company and Parent shall prepare and the Company shall prepare file with the SEC the Proxy Statement and Parent shall file with the SEC the Form S-4F-4, in which the Proxy Statement will shall be included as a prospectus. Each of Parent and the Company and Parent shall use all its commercially reasonable efforts to have the Form S-4 F-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its commercially reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock the Company's stockholders as promptly as practicable after the Form S-4 F-4 is declared effective.
effective under the Securities Act. Parent shall also take any action (bother than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent ADSs in the Merger, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form F-4 shall be made by Parent, and no filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Proxy Statement shall be made by the Company, in each case without providing the other party the opportunity to review and comment thereon. If at any time prior to the Effective Time there shall occur (i) any event with respect information relating to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect any of their respective Affiliates, directors or officers, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to information supplied by Parent for inclusion in either the Form S-4 F-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to so that (i) the Form S-4 F-4 would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein not misleading or (ii) the Proxy StatementStatement 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, as applicable, the party which discovers such event information shall be so described, promptly notify the other parties hereto and such an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, as to the extent required by law, disseminated to the stockholders of the Company.
(c) Each of the Company and Parent . The parties shall notify each other promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests request by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with Proxy Statement or the SEC in connection with the Merger and other transactions contemplated hereby Form F-4 or for additional information and shall supply the each other with copies of all correspondence between the Company it or any of its representatives, or Parent or any of its representatives, as the case may beRepresentatives, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such documentForm F-4 or the Merger.
(db) The Company (i) shall, as promptly soon as practicable after following the Form S-4 is declared effective under date of this Agreement, establish a record date (which shall be as soon as practicable following the Securities Actdate of this Agreement) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting in accordance with the DGCL Stockholders' Meeting") solely for the purpose of obtaining the Company Stockholder Approval and subject (ii) except as expressly permitted pursuant to Section 4.34.02(b), the shall, through its Board of Directors of the Company shall Directors, recommend to the Company's stockholders its stock holders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (by this Agreement and use commercially reasonable efforts to solicit the "Company Recommendation")Stockholder Approval. Without limiting the generality of the foregoing, the The Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d5.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Section 7.1 Preparation of the Form S-4, Proxy Statement; Stockholders Meeting.
(a) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and as promptly as practicable following the performance of the covenant contained in Section 7.9(c) hereof Parent shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 S-4, declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) Each of the Company, Majority Shareholder and Parent covenants that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Form S-4 will, at the time the Form S-4 is filed with the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. The Form S-4 will comply as to form in all material respects with the requirements of the Securities Act. Notwithstanding the foregoing, no representation or covenant is made by Parent with respect to statements made or incorporated by reference based on information supplied in writing by the Company or Majority Shareholder for inclusion or incorporation by reference in the Form S-4. If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiariesSubsidiaries, or with respect to other information supplied by Company or Majority Shareholder for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, supplement to the Form S-4 or the Proxy StatementS-4, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by lawapplicable federal securities laws, disseminated to the stockholders shareholders of Company.
(c) Each of the Company and Parent shall promptly notify the other Company of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby Transaction or for additional information and shall supply the other Company with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicablepracticable (and to the extent that Parent's ability to so respond depends upon the response of the Company or Majority Shareholder, in turn, the Company and Majority Shareholder each agrees to use its reasonable efforts to permit Parent to so respond). The Company and Majority Shareholder shall provide Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationS-4.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Trendwest Resorts Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy StatementPREPARATION OF FORM S-4 AND THE PROXY STATEMENT; Stockholders MeetingSTOCKHOLDERS' MEETING.
(a) As promptly as reasonably practicable following after the date execution of this Agreement, Parent and (i) the Company shall prepare and file with the SEC a proxy statement relating to the meeting of the Company's stockholders to be held to obtain the Company Stockholder Approval (together with any amendments thereof or supplements thereto, the "PROXY STATEMENT") and (ii) Parent shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the "FORM S-4, ") in which the Proxy Statement will shall be included as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued to the stockholders of the Company pursuant to the Merger. Each of Parent and the Company shall use all reasonable efforts to have cause the Form S-4 declared to become effective as promptly as practicable, and shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of Parent Common Stock pursuant to the Merger. Each of Parent and the Company shall furnish all information concerning itself to the other as the other may reasonably request in connection with such actions and the preparation of the Form S-4 and Proxy Statement. The Company authorizes Parent to utilize in the Form S-4 and in all such state filed materials, the information concerning the Company and its subsidiaries provided to Parent in connection with, or contained in, the Proxy Statement. Parent promptly will advise the Company when the Form S-4 has become effective and of any supplements or amendments thereto, and the Company shall not distribute any written material that would constitute, as advised by counsel to the Company, a "prospectus" relating to the Merger or the Parent Common Stock within the meaning of the Securities Act as promptly as practicable after such filingor any applicable state securities law without the prior written consent of Parent. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as As promptly as practicable after the Form S-4 is declared shall have become effective, the Company and Parent shall mail the Proxy Statement to the Company's stockholders.
(b) If Parent agrees promptly to advise the Company if at any time prior to the Effective Time there shall occur (i) any event with respect to meeting of stockholders of the Company or to approve the Merger any of its subsidiaries, or with respect to other information supplied provided by Company for inclusion it in the Form S-4 or the Proxy Statement is or (ii) becomes incorrect or incomplete in any event material respect and to provide the Company with respect the information needed to Parent, correct such inaccuracy or omission. Parent will furnish the Company with respect such supplemental information as may be necessary in order to information supplied by Parent for inclusion in the Form S-4 or cause the Proxy Statement, in either case, which event is required insofar as it relates to be described in an amendment of, or a supplementParent and its subsidiaries, to comply with applicable law after the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated mailing thereof to the stockholders of the Company.
(c) Each The Company agrees promptly to advise Parent if at any time prior to the meeting of its stockholders any information provided by it in the Company Proxy Statement is or becomes incorrect or incomplete in any material respect and to provide Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby information needed to correct such inaccuracy or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect theretoomission. The Company and will furnish Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement such supplemental information as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information may be necessary in order to prepare the Form S-4 and cause the Proxy Statement, and shall provide promptly insofar as it relates to the other party any information such party may obtain that could necessitate amending any such documentCompany and its subsidiaries, to comply with applicable law after the mailing thereof to stockholders of the Company.
(d) The As soon as reasonably practicable following the date of this Agreement, the Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene shall call and hold a meeting of its stockholders (the Company Stockholders Meeting in accordance with the DGCL "COMPANY STOCKHOLDERS' MEETING") for the purpose of obtaining the Company Stockholder Approval. The Company shall use its best efforts to solicit from its stockholders proxies, and shall take all other action necessary or advisable to secure the vote or consent of stockholders required by applicable law or otherwise to obtain the Company Stockholder Approval and subject to Section 4.3, the through its Board of Directors shall (subject to their fiduciary duties) recommend to its stockholders the giving of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationStockholder Approval.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Mail Boxes Etc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement4.1 PREPARATION OF FORM S-4 AND PROXY STATEMENT/PROSPECTUS; Stockholders MeetingINFORMATION SUPPLIED.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company Chancellor shall prepare and file with the SEC (i) a preliminary Proxy Statement/Prospectus and (ii) a Registration Statement on Form S-4 (the "Form S-4") with respect to the registration of the issuance of shares of Chancellor Common Stock in the Merger, in of which the Proxy Statement Statement/Prospectus will be included as form a prospectuspart. Each of Parent and the Company Chancellor shall use all its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company Chancellor shall use reasonable its best efforts to cause the Proxy Statement Statement/Prospectus to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, Chancellor's stockholders and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the LIN's stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Chancellor shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or take any action that would subject it to the service of process in suits, duly callother than as to matters and transactions relating to the Form S-4, give notice of, convene and hold the Company Stockholders Meeting in accordance any jurisdiction where it is not so subject) required to be taken under any applicable state securities laws in connection with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors issuance of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, Chancellor Common Stock in the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) LIN shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement furnish all information concerning itself and the Merger shall holders of shares of LIN Common Stock as may be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of reasonably requested in connection with any such obligationaction.
(eb) The Company shall coordinate LIN agrees and cooperate represents and warrants that the information supplied or to be supplied by it specifically for inclusion or incorporation by reference in the (i) Form S-4 will not, at the time the Form S-4 is filed with Parent the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, or (ii) the Proxy Statement/Prospectus will not, at the date it is first mailed to Chancellor's stockholders or at the time of the Chancellor Stockholders Meeting (as defined in Section 4.2), contain any statement which, at the time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact necessary in order to make the timing of the Company Stockholders Meeting.statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the
Appears in 1 contract
Additional Agreements. SECTION 5.1 Section 6.01 Preparation of the Form S-4, S-4 and Joint Proxy Statement; Stockholders Meeting.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company shall prepare prepare, together with USV,, and Parent shall file with the SEC SEC, a joint proxy statement/information statement (the "Joint Proxy Statement") in preliminary form and the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of , and Parent and the Company shall use all their reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Parent and the Company shall use their reasonable efforts to have the Form S-4 declared effective under by the Securities Act SEC as promptly as practicable after such filingfiling and to ensure that it complies in all material respects with the applicable provisions of the Securities Act and the Exchange Act. The Parent and the Company shall use reasonable best efforts also take any other action required to cause be taken under any applicable federal and state securities laws in connection with the issuance of Parent Common Stock in the Merger and each of the Parent and the Company shall furnish all information concerning itself and its stockholders as may be reasonably requested by the other in connection with the Joint Proxy Statement to or any such action. Parent and the Company shall each be mailed to holders of Company Common Stock as promptly as practicable after solely responsible for any statement, information or omission in the Form S-4 is declared effectiveor the Joint Proxy Statement relating to it based upon information provided by it for inclusion therein. Palisade agrees to cause USV to furnish all information concerning USV as may be reasonably requested by Parent or Company in connection with the Joint Proxy Statement or pursuant to this Article VI.
(b) If If, at any time prior to the Effective Time there shall occur (i) receipt of the Company Stockholder Approval or the Parent Stockholder Approval, any event occurs with respect to the Company or any of its subsidiariesCompany Subsidiary, or any change occurs with respect to other information supplied by the Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Joint Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplementsupplement to, the Form S-4 or the Joint Proxy Statement, the Com- pany shall promptly notify Parent of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 or the Joint Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC Statement and, as required by lawLaw, disseminated in disseminating the information contained in such amendment or supplement to Parent's or the stockholders of Company's stockholders.
(c) Each If, at any time prior to the receipt of the Company and Stockholder Approval or the Parent Stockholder Approval, any event occurs with respect to the Parent, any Parent Subsidiary, or any change occurs with respect to other information supplied by the Parent for inclusion in the Form S-4 or the Joint Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Joint Proxy Statement, the Parent shall promptly notify the other Company of such event, and the receipt of any comments from Parent and Company shall cooperate in the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings prompt filing with the SEC in connection with the Merger and other transactions contemplated hereby of any necessary amendment or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect supplement to the Form S-4 and or the Joint Proxy Statement and, as promptly as practicable. The Company and Parent shall cooperate with each other and provide required by Law, in disseminating the information contained in such amendment or supplement to each other all information necessary in order to prepare Parent's or the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such documentCompany's stockholders.
(d) If, at any time prior to the receipt of the Company Stockholder approval or the Parent Stockholder Approval, to Palisade's knowledge, any event occurs with respect to USV, or any change occurs with respect to other information supplied by USV for inclusion in the Form S-4 or the Joint Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Joint Proxy Statement, Palisade shall cause USV to (x) promptly notify the Company of such event and (y) to cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 or the Joint Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to Parent's or the Company's stockholders.
(e) Palisade agrees that, concurrently with the execution and delivery of this Agreement, it shall, deliver to the Company a duly executed written consent (the "Company Written Consent") with respect to all shares of the Company owned by it in favor of the Merger and approval of this Agreement. The Company shall, shall use its reasonable efforts to cause the Joint Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under date of this Agreement.
(f) Parent shall, as soon as practicable following the Securities Actdate of this Agreement, duly call, give notice of, convene and hold an annual meeting of its stockholders (the Company "Parent Stockholders Meeting in accordance with the DGCL Meeting") for the purpose of, among other things, seeking the Parent Stockholder Approval. Parent shall use its rea- sonable efforts to cause the Joint Proxy Statement to be mailed to Parent's stockholders as promptly as practicable after the date of obtaining this Agreement. Parent shall, through the Company Stockholder Approval and subject to Section 4.3Parent Board, the Board of Directors of the Company shall recommend to its stockholders that they give the Company's stockholders the approval Parent Stockholder Approval.
(g) Palisade agrees that, by its execution and adoption delivery of this Agreement, it agrees to (i) vote all shares of the Parent owned by it in favor of the Merger and when called upon by the other transactions contemplated hereby Parent to do so; (the "Company Recommendation"). Without limiting the generality ii) vote all shares of USV owned by it in favor of the foregoing, the Company agrees that its obligations pursuant USV Transaction when called upon by USV to the first sentence do so; and (iii) vote all shares of this Section 5.1(d) shall not be affected Parent owned by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change it in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders favor of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed USV Transaction when called upon by Parent to relieve the Company of such obligationdo so.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION Section 5.1 Preparation of the Form S-4, S-4 and the Proxy Statement; Stockholders Company Stockholder Meeting.
(a) Form S-4/Proxy Statement. As promptly soon as practicable following the date of this Agreement, Parent and the Company shall prepare the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use commercially reasonable efforts (i) to cause the Form S-4 and the Company shall use all reasonable efforts Proxy Statement to comply with the applicable rules and regulations promulgated by the SEC, (ii) to promptly notify the other of, cooperate with each other with respect to, and respond promptly to any comments of the SEC or its staff, (iii) to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and (iv) to keep the Form S-4 effective through the Closing in order to permit the consummation of the Transactions. The Company shall use commercially reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall’s stockholders, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice . No filing of, convene or amendment or supplement to, the Form S-4 will be made by Parent, and hold no filing of, or amendment or supplement to the Proxy Statement will be made by the Company Stockholders Meeting or Parent, in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3each case, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and without providing the other transactions contemplated hereby (party and its respective counsel the "Company Recommendation")reasonable opportunity to review and comment thereon and giving due consideration to such comments. Without limiting Notwithstanding the generality of the foregoingimmediately preceding sentence, the Company agrees that may amend or supplement the Proxy Statement to effect a Company Adverse Recommendation Change. The parties shall notify each other promptly of the receipt of any comments from the SEC or its obligations pursuant staff and any request by the SEC or its staff for amendments or supplements to the first sentence Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of this Section 5.1(d) shall not be affected by all correspondence between such party or any of its representatives, on the commencementone hand, public proposaland the SEC or its staff on the other hand, public disclosure with respect to the Proxy Statement, the Form S-4 or communication the Merger. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order or the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of any Company Takeover Proposal. Notwithstanding any Change in their respective affiliates, officers or directors, should be discovered by the Company Recommendationor Parent which should be set forth in an amendment or supplement to the Form S-4 or the Proxy Statement, unless otherwise directed so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in writing light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information must be promptly filed with the SEC and, to the extent required by ParentLaw, this Agreement and the Merger shall be submitted disseminated to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationCompany.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Polyone Corp)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy StatementSHAREHOLDER APPROVAL; Stockholders MeetingPREPARATION OF PROXY STATEMENT.
(a) As promptly as practicable following On or prior to February 7, 2000, the date Parent shall duly call, give notice of, convene and hold a meeting of holders of the Parent Common Stock (the "Shareholders Meeting") for the purpose of obtaining the Company Stockholder Approval. Without limiting the generality of the foregoing but subject to Section 5.3(b), the Parent agrees that its obligations pursuant to the first sentence of this AgreementSection 5.1(a) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Parent of any Transaction Proposal or (ii) the withdrawal or modification by the Board of Directors of the Parent of its approval or recommendation of this Agreement or the Merger. The Parent shall, through its Board of Directors (but subject to the right of the Board of Directors to withdraw or modify its approval or recommendation of the Merger and this Agreement as set forth in Section 5.3(b)), recommend to its shareholders that the Company Stockholder Approval be given.
(b) The Parent shall prepare and file a preliminary Proxy Statement with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its reasonable best efforts to respond to any comments of the SEC or its staff, and, to the extent permitted by law, to cause the Proxy Statement to be mailed to holders of Company Common Stock the Parent's shareholders as promptly as practicable after responding to all such comments to the Form S-4 is declared effective.
satisfaction of the staff and in any event at least ten (b10) If at any time days prior to the Effective Time there Shareholders Meeting. The Parent shall occur (i) any event with respect to notify the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests request by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby Proxy Statement or for additional information and shall will supply the other Company with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government officialstaff, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicableor the Merger. The Company and Parent If at any time prior to the Shareholders Meeting there shall cooperate with each other and provide occur any event that should be set forth in an amendment or supplement to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, the Parent shall promptly prepare and mail to its shareholders such an amendment or supplement. The Parent shall not mail any Proxy Statement, or any amendment or supplement thereto, to which the Company reasonably objects. The Company shall cooperate with and provide promptly to such information as is reasonably requested by the other party Parent in the preparation of the Proxy Statement or any information such party may obtain that could necessitate amending any such documentamendment or supplement thereto.
(dc) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, in its capacity as the sole shareholder of Sub, by its execution hereof, approves and adopts this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationtransactions contemplated hereby.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement/Prospectus; Stockholders Meeting.Registration Statement. --------------------------------------------------
(a) As promptly as practicable following after the date execution of this Agreement, Parent and the Company shall prepare and file with the SEC the Form S-4, Proxy Statement and the Registration Statement in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all its reasonable best efforts to (i) cause the Registration Statement and the Proxy Statement to comply as to form in all material respects with the Securities Act, the Exchange Act, and the rules and regulations thereunder, (ii) respond promptly to any comments of the SEC or its staff with respect to the Registration Statement, the Proxy Statement, or any other report, statement, or other document it may have filed with the Form S-4 SEC, (iii) cause the Registration Statement to be declared effective under the Securities Act as promptly soon thereafter as practicable, (iv) as soon as practicable after such filing. The Company the Registration Statement shall use reasonable best efforts to have been declared effective, cause the Proxy Statement and forms of proxy to be mailed to holders the Company's stockholders, and (v) notify the other party promptly of any stop order or threatened stop order of which it becomes aware with respect to the Registration Statement or similar proceeding with respect to the Proxy Statement. Each of Parent and the Company Common Stock as promptly as practicable after shall afford the Form S-4 is declared effectiveother party a reasonable opportunity to review and comment upon the Registration Statement, the Proxy Statement, any amendment or supplement to either document, or any other document filed with the SEC prior to its filing. The Proxy Statement shall include the fairness opinion of George Witte, Business ▇▇▇▇▇▇▇▇▇ ▇▇ferred to in Section 2.21. The Proxy Statement shall also include the recommendation of the Board of Directors of the Company in favor of the Merger which shall not be withdrawn, modified, or withheld except in compliance with Section 5.4(a).
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to Each of Parent and the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of party promptly upon the receipt of any comments from the SEC or its staff or any other appropriate government official in connection with any filing made pursuant hereto and of any requests request by the SEC or its staff or any other appropriate government official for amendments any amendment or supplements supplement to the Registration Statement, the Proxy Statement, or any of the filings other filing with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply provide to the other with party copies of all correspondence between the Company such party or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The to the Registration Statement, the Proxy Statement, or any other such filing.
(c) Promptly after Parent or the Company and Parent shall use their respective reasonable best efforts to respond to any comments notify the other party of the SEC with respect discovery of information required to be disclosed to the Form S-4 other party pursuant to Section 2.19 or Section 3.19, as the case may be, the parties shall prepare and file appropriate amendments or supplements to the Proxy Registration Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly as the case may be, and, to the other party any information extent required by law, disseminate such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure amendment or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted supplement to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationCompany.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Ydi Wireless Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, S-4 and Proxy Statement/Prospectus; Company Stockholders Meeting.
(a) As promptly as practicable following the date of this Agreementhereof, Parent and the Company shall prepare and file with the SEC preliminary proxy materials which shall constitute the Proxy Statement/Prospectus (such proxy statement/prospectus, and any amendments or supplements thereto, the "Proxy Statement/Prospectus") and Parent shall prepare and file with the SEC a registration statement on Form S-4 with respect to the issuance of Parent Common Stock in the Merger (the "Form S-4, in which the "). The Proxy Statement Statement/Prospectus will be included in the Form S-4 as a Parent's prospectus. The Form S-4 and the Proxy Statement/Prospectus shall comply as to form in all material respects with the applicable provisions of the Securities Act and the Exchange Act. Each of Parent and the Company shall use all its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filingfiling with the SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger. Parent and the Company shall, as promptly as practicable after receipt thereof, provide copies of any written comments received from the SEC with respect to the Proxy Statement/ Prospectus to the other party and advise the other party of any oral comments with respect to the Proxy Statement/Prospectus received from the SEC. The Company shall use its reasonable best efforts to cause the Proxy Statement Statement/Prospectus to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the Company's stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities laws in connection with the Share Issuance and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action. Each of the Company and Parent will inform the other party, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Form S-4 or the Proxy Statement/Prospectus, as the case may be, or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement/Prospectus, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and 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 stockholders of the Company. Parent agrees that none of the information supplied or to be supplied by Parent for inclusion or incorporation by reference in the Proxy Statement/Prospectus and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Company Stockholders Meeting, will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or be false or misleading with respect to any material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading. The Company agrees that none of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Proxy Statement/Prospectus and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Company Stockholders Meeting, will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or be false or misleading with respect to any material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of circumstances under which they are made, not misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading. For purposes of the foregoing, it is understood and agreed that information concerning or related to Parent will be deemed to have been supplied by Parent and information concerning or related to the Company and the Company Stockholders Meeting shall be deemed to have been supplied by the Company. Each of the Company and Parent will provide Parent or the Company, respectively, with a reasonable opportunity to review and comment on any amendment or supplement to the Proxy Statement/Prospectus and the Form S-4, respectively, prior to filing such with the SEC, and will provide the other party with a reasonable number of copies of all such filings made with the SEC. No amendment or supplement to the information supplied by Parent or the Company for inclusion in the Proxy Statement/Prospectus shall be made without the approval of Parent or the Company, which approval shall not be unreasonably withheld or delayed.
(b) The Company shall, as promptly as practicable following the execution of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting in accordance with the DGCL Meeting") for the purpose of obtaining the Required Company Vote with respect to the adoption of this Agreement (provided that it is understood that it is the intention of the Company that the Company Stockholder Approval Meeting will, to the extent reasonably practicable, be scheduled such that it shall occur reasonably proximate to the Effective Time), and shall take all lawful action to solicit the adoption of this Agreement by the Required Company Vote, and subject to Section 4.35.4 and without limiting its rights under Section 7.1(f), the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, Agreement by the Merger and stockholders of the other transactions contemplated hereby (the "Company Recommendation")Company. Without limiting the generality of the foregoingforegoing and without limiting its rights pursuant to Sections 5.4 and 7.1(f), the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d5.1(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change Acquisition Proposal (as defined in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationSection 5.4(b)).
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 6.01. Preparation of the Form S-4, S-4 and the Proxy Statement; Stockholders Meeting.
(a) As promptly soon as reasonably practicable following the date of this Agreement, Parent RJR and the Company ▇▇▇▇▇▇▇▇ American shall prepare and file with the SEC (i) the Proxy Statement in preliminary form and (ii) the Form S-4, in which the Proxy Statement will be included as a prospectus, and each of RJR and B&W shall use its reasonable best efforts to respond as promptly as reasonably practicable to any comments of the SEC with respect thereto. Each of Parent RJR and the Company B&W shall use all its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing. The Company RJR shall use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock RJR's stockholders as promptly as reasonably practicable after the Form S-4 is declared effectiveeffective under the Securities Act. RJR shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of ▇▇▇▇▇▇▇▇ American Common Stock in the Merger, and RJR shall furnish all information concerning RJR and the holders of RJR Common Stock and rights to acquire RJR Common Stock pursuant to RJR Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such party or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger. Notwithstanding the foregoing, prior to filing the Form S-4 (or any amendment or supplement thereto) or filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each of RJR and B&W, as the case may be, (i) shall provide the other party with a reasonable opportunity to review and comment on such document or response, (ii) shall include in such document or response all comments reasonably proposed by such other party and (iii) shall not file or mail such document or respond to the SEC prior to receiving such other party's approval, which approval shall not be unreasonably withheld or delayed.
(b) If at any time If, prior to the Effective Time there shall occur (i) Time, any event occurs with respect to the Company RJR or any of its subsidiariesRJR Subsidiary, or any change occurs with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent RJR for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplementsupplement to, to the Form S-4 or the Proxy Statement, RJR shall promptly notify B&W of such event shall be so describedevent, and such RJR and B&W shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement shall be promptly filed with to the SEC Form S-4 or the Proxy Statement and, as required by lawLaw, disseminated in disseminating the information contained in such amendment or supplement to the stockholders of CompanyRJR's stockholders.
(c) Each of If, prior to the Company and Parent shall promptly notify the other of the receipt of Effective Time, any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC event occurs with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate B&W Business (other than with each respect to an Excluded Asset or an Excluded Liability), or any change occurs with respect to other and provide to each other all information necessary supplied by B&W for inclusion in order to prepare the Form S-4 and or the Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Proxy Statement, B&W shall promptly notify RJR of such event, and B&W and RJR shall provide promptly cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the other party any Form S-4 or the Proxy Statement and, as required by Law, in disseminating the information contained in such party may obtain that could necessitate amending any such documentamendment or supplement to RJR's stockholders.
(d) The Company RJR shall, as promptly soon as reasonably practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its stockholders (the "RJR Stockholders Meeting") for the purpose of seeking the RJR Stockholder Approval. RJR shall use its reasonable best efforts to cause the Proxy Statement to be mailed to RJR's stockholders as soon as reasonably practicable after the Form S-4 is declared effective under the Securities Act. RJR shall, duly callthrough the RJR Board, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to its stockholders that they give RJR Stockholder Approval, except to the Company's stockholders extent that the RJR Board shall have withdrawn or modified its approval and adoption or recommendation of this Agreement, Agreement or the Merger and the other transactions contemplated hereby (the "Company Recommendation"as permitted by Section 5.02(b). Without limiting the generality of the foregoing, the Company RJR agrees that its obligations pursuant to the first sentence of this Section 5.1(d6.01(d) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company RJR of any Company RJR Takeover Proposal. Notwithstanding any Change in Proposal or (ii) the Company Recommendation, unless otherwise directed in writing withdrawal or modification by Parent, the RJR Board of its approval or recommendation of this Agreement and or the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationMerger.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Business Combination Agreement (Rj Reynolds Tobacco Holdings Inc)
Additional Agreements. SECTION 5.1 7.01. Preparation of the Form S-4, Proxy Statement, the Newco Form S-4 and the Newco Form 8-A; Company Stockholders Meeting.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company shall (i) prepare the Proxy Statement, the Newco Form S-4 and the Newco Form 8-A and (ii) file the Proxy Statement, the Newco Form S-4 and the Newco Form 8-A with the SEC the Form S-4, in which the SEC. The Proxy Statement will be included as a prospectusprospectus in the Newco Form S-4. Each of Parent and the Company and Parent shall use all its reasonable best efforts to have the Newco Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Each of the Company and Parent shall use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock the Company's stockholders as promptly as practicable after the Newco Form S-4 is declared effective.
(b) If at any time prior to effective under the Effective Time there shall occur (i) any event with respect to Securities Act. Each of Parent and the Company shall also take any action (other than qualifying to do business in any jurisdiction in which is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance and distribution of its subsidiaries, or with respect to other information supplied by Company for inclusion Newco Common Stock in the Form S-4 or Merger. Parent shall furnish all information concerning Parent, the Transactions, the Transaction Agreements and the Commercial Agreements and shall provide all other assistance and cooperation as may be reasonably requested by the Company in connection with the preparation, filing and distribution of the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in and the Newco Form S-4 or the Proxy Statement, in either case, which event is required to be and any other action described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event this Section 7.01(a). The parties shall be so described, and such amendment or supplement shall be notify each other promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests request by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with Proxy Statement, the SEC in connection with Newco Form S-4 or the Merger and other transactions contemplated hereby Newco Form 8-A or for additional information and shall supply the each other with copies of all correspondence between the Company it or any of its representatives, or Parent or any of its representatives, as the case may beRepresentatives, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect theretoto the Proxy Statement, the Newco Form S-4, the Newco Form 8-A, the Merger, the other Transactions, the Transaction Agreements or the Commercial Agreements. The Each of the Company and Parent shall use their respective its reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicablepracticable to any such comments or requests of the SEC. The If at any time prior to receipt of the Company Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Newco Form S-4 or the Newco Form 8-A, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement, and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the connection therewith. The Company shall not mail any Proxy Statement, and shall provide promptly the Newco Form S-4 or the Newco Form 8-A or any amendment or supplement thereto, to the other party any information such party may obtain that could necessitate amending any such documentwhich Parent reasonably objects in a timely manner.
(db) The Company shall, as promptly as practicable after following the Form S-4 is declared effective under date of this Agreement (taking into account any delays reasonably required as a result of the Securities Actoccurrence of any event described in the last sentence of this clause (b)), duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting in accordance with the DGCL Meeting") for the purpose of obtaining seeking the Company Stockholder Approval and subject to Section 4.3Approval. The Company shall, the Board of Directors of through the Company shall Board, recommend to its stockholders that they give the Company's stockholders Company Stockholder Approval, except to the extent that the Company Board shall have withdrawn or modified its approval and adoption or recommendation of this Agreement, the Restructuring or the Merger and the other transactions contemplated hereby (the "Company Recommendation"as permitted by Section 6.02(b). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d7.01(b) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in Proposal or (ii) the withdrawal or modification by the Company RecommendationBoard of its approval or recommendation of this Agreement, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to Restructuring or the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationMerger.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Section 6.1. Preparation of the Form S-4, S-4 and the Joint Proxy Statement/Prospectus; Stockholders Meeting.Meetings.
(a) As promptly soon as reasonably practicable following the date of this Agreement, Parent Amedisys and OPCH shall prepare the Form S-4 and the Company Joint Proxy Statement/Prospectus, and OPCH shall prepare and file with the SEC the Form S-4, in which shall include the Joint Proxy Statement will be included Statement/Prospectus as a prospectus, with the SEC. The parties shall consult each other in connection with setting a preliminary record date for each of the Amedisys Stockholders Meeting and the OPCH Shareholders Meeting and shall commence broker searches pursuant to Section 14a-13 of the Exchange Act in connection therewith. Each of Parent Amedisys and the Company OPCH shall use all reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company Amedisys and OPCH shall, as promptly as practicable after receipt thereof, provide the other party copies of any written comments and advise the other party of any oral comments, with respect to the Form S-4 or the Joint Proxy Statement/Prospectus received from the SEC. OPCH and Amedisys shall cooperate and provide the other parties with a reasonable opportunity to review and comment on any amendment or supplement to the Form S-4 or the Joint Proxy Statement/Prospectus prior to filing such with the SEC. No filing of, or amendment or supplement to, the Form S-4 will be made by OPCH, and no filing of, or amendment or supplement to, the Joint Proxy Statement/Prospectus will be made by OPCH or Amedisys, in each case without providing the other with a reasonable opportunity to review and comment (which comments shall be considered by the applicable party in good faith) thereon if reasonably practicable; provided that with respect to documents filed by a party that are incorporated by reference in the Form S-4 or the Joint Proxy Statement/Prospectus, this right of review and comment shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, or the combined entity or the transactions contemplated hereby; and provided, further, that this review and comment right shall not apply with respect to information relating to an Amedisys Recommendation Change or an OPCH Recommendation Change. Amedisys shall use reasonable best efforts to cause the Joint Proxy Statement to be mailed to holders of Company Common Stock Amedisys’s stockholders, and OPCH shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be mailed to OPCH’s stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Each party shall advise the other parties, promptly after it receives notice thereof, of the time when the Form S-4 has become effective.
(b) , of the time when any supplement or amendment to the Form S-4 has been filed, of the issuance of any stop order with respect to the Form S-4, or of any request by the SEC for amendment of the Form S-4 or the Joint Proxy Statement/Prospectus or comments on the Form S-4 or the Joint Proxy Statement/Prospectus and responses thereto or requests by the SEC for additional information relating thereto. If at any time prior to the Effective Time there shall occur (i) any event with respect information relating to the Company Amedisys, OPCH or any of its subsidiariestheir respective affiliates, officers or with respect directors, should be discovered by Amedisys or OPCH that should be set forth in an amendment or supplement to other information supplied by Company for inclusion in any of the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Joint Proxy Statement/Prospectus so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in either caselight of the circumstances under which they were made, which event is required to be described in not misleading, the party that discovers such information shall promptly notify the other party and an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, as to the extent required by lawApplicable Law, disseminated to the stockholders of CompanyAmedisys and OPCH.
(cb) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company Amedisys shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold a meeting of its stockholders (the Company “Amedisys Stockholders Meeting Meeting”) in accordance with the DGCL and the rules of the NASDAQ for the purpose of obtaining the Company Amedisys Stockholder Approval and shall, subject to the provisions of Section 4.35.2(b) and Section 5.2(d), the through its Board of Directors of the Company shall Directors, recommend to the Company's its stockholders the approval and adoption of this Agreement. Amedisys may only postpone or adjourn the Amedisys Stockholders Meeting (i) to solicit additional proxies for the purpose of obtaining the Amedisys Stockholder Approval, (ii) for the absence of a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that Amedisys has determined after consultation with outside legal counsel is reasonably likely to be required under Applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by stockholders of Amedisys prior to the Amedisys Stockholders Meeting.
(c) OPCH shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly give notice of, convene and hold a meeting of its stockholders (the “OPCH Stockholders Meeting”) in accordance with the DGCL and the rules of the NASDAQ for the purpose of obtaining the OPCH Stockholder Approvals and shall, subject to the provisions of Section 5.3(b) and Section 5.3(d), through its Board of Directors, recommend to its stockholders the approval of the OPCH Share Issuance and the adoption of the OPCH Charter Amendment. OPCH may only postpone or adjourn the OPCH Stockholders Meeting (i) to solicit additional proxies for the purpose of obtaining the OPCH Stockholder Approvals, (ii) for the absence of a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that OPCH has determined after consultation with outside legal counsel is reasonably likely to be required under Applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by stockholders of OPCH prior to the OPCH Stockholders Meeting.
(d) Amedisys and OPCH shall use reasonable best efforts to hold the Amedisys Stockholders Meeting and the OPCH Stockholders Meeting on the same date and as soon as reasonably practicable after the date of this Agreement.
(e) Subject to the terms and conditions of this Agreement, including Section 5.2 and Section 5.3, Amedisys and OPCH shall use reasonable best efforts to (i) solicit from Amedisys’s stockholders (in the case of Amedisys) and OPCH’s stockholders (in the case of OPCH) proxies in favor of the Amedisys Stockholder Approval and the OPCH Stockholder Approvals, respectively, and (ii) take all other action necessary or advisable to secure the Amedisys Stockholder Approval and the OPCH Stockholder Approvals, respectively.
(f) The only matters to be voted upon at each of the Amedisys Stockholders Meeting and the OPCH Stockholders Meeting are (i) the Merger, in the case of the Amedisys Stockholders Meeting, and the OPCH Share Issuance and the OPCH Charter Amendment, in the case of the OPCH Stockholders Meeting, (ii) compensatory arrangements between Amedisys and its executive officers relating to the Merger (on a non-binding, advisory basis), in the case of the Amedisys Stockholders Meeting, and (iii) any adjournment or postponement of the Amedisys Stockholders Meeting or the OPCH Stockholders Meeting, as applicable, for a reasonable period to solicit additional proxies, if deemed necessary by Amedisys or OPCH, respectively, and (iv) any other matters that are (I) required by Applicable Law or the Bylaws of OPCH or Amedisys, as applicable, or (II) if so desired and mutually agreed on, of the type customarily brought before a meeting of stockholders in connection with approval of this Agreement and the other transactions contemplated hereby by this Agreement.
(the "Company Recommendation"). g) Without limiting the generality of the foregoing, the Company (i) OPCH agrees that its obligations pursuant to the first sentence of this Section 5.1(d) 6.1 to hold the OPCH Stockholders Meeting shall not be affected by the commencement, public proposal, public disclosure or communication to the Company OPCH or any other person of any Company Takeover Proposal. Notwithstanding any OPCH Alternative Transaction or the making of an OPCH Recommendation Change in and (ii) Amedisys agrees that its obligations pursuant to this Section 6.1 to hold the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Amedisys Stockholders Meeting for shall not be affected by the purpose commencement, public proposal, public disclosure or communication to Amedisys or any other person of approving any Amedisys Alternative Transaction or the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company making of such obligationan Amedisys Recommendation Change.
(eh) The Company shall coordinate Each of Amedisys and cooperate OPCH agrees that none of the information supplied or to be supplied by such party (or its subsidiaries) for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with Parent the SEC, and at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, 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 are made, not misleading, or (ii) the Joint Proxy Statement/Prospectus will, at the date it is first mailed to OPCH's or Amedisys's stockholders or at the time of the OPCH Stockholders Meeting or the Amedisys Stockholders 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 light of the circumstances under which they are made, not misleading. Each of Amedisys and OPCH will cause the Form S-4 and the Joint Proxy Statement/Prospectus to comply as to form in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder. Notwithstanding the foregoing, no covenant is made by either Amedisys or OPCH with respect to the timing statements made or incorporated by reference therein based on information supplied by or on behalf of the Company Stockholders Meetingother party (or its subsidiaries) for inclusion or incorporation by reference in the Form S-4 or the Joint Proxy Statement/Prospectus.
Appears in 1 contract
Sources: Merger Agreement
Additional Agreements. SECTION Section 5.1 Preparation of the Form S-4, S-4 and the Proxy Statement; Stockholders Company Stockholder Meeting.
(a) Form S-4/Proxy Statement. As promptly soon as practicable following the date of this Agreement, Parent and the Company shall prepare the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use commercially reasonable efforts (i) to cause the Form S-4 and the Company shall use all reasonable efforts Proxy Statement to comply with the applicable rules and regulations promulgated by the SEC, (ii) to promptly notify the other of, cooperate with each other with respect to, and respond promptly to any comments of the SEC or its staff, (iii) to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and (iv) to keep the Form S-4 effective through the Closing in order to permit the consummation of the Transactions. The Company shall use commercially reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall's stockholders, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice . No filing of, convene or amendment or supplement to, the Form S-4 will be made by Parent, and hold no filing of, or amendment or supplement to the Proxy Statement will be made by the Company Stockholders Meeting or Parent, in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3each case, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and without providing the other transactions contemplated hereby (party and its respective counsel the "Company Recommendation")reasonable opportunity to review and comment thereon and giving due consideration to such comments. Without limiting Notwithstanding the generality of the foregoingimmediately preceding sentence, the Company agrees that may amend or supplement the Proxy Statement to effect a Company Adverse Recommendation Change. The parties shall notify each other promptly of the receipt of any comments from the SEC or its obligations pursuant staff and any request by the SEC or its staff for amendments or supplements to the first sentence Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of this Section 5.1(d) shall not be affected by all correspondence between such party or any of its representatives, on the commencementone hand, public proposaland the SEC or its staff on the other hand, public disclosure with respect to the Proxy Statement, the Form S-4 or communication the Merger. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order or the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of any Company Takeover Proposal. Notwithstanding any Change in their respective affiliates, officers or directors, should be discovered by the Company Recommendationor Parent which should be set forth in an amendment or supplement to the Form S-4 or the Proxy Statement, unless otherwise directed so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in writing light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information must be promptly filed with the SEC and, to the extent required by ParentLaw, this Agreement and the Merger shall be submitted disseminated to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationCompany.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy StatementPREPARATION OF FORM F-4 AND THE PROXY STATEMENT; Stockholders MeetingSHAREHOLDERS' MEETINGS.
(a) As promptly as reasonably practicable following after the execution of this Agreement, (i) the Company and Parent shall prepare and file with the SEC a preliminary joint proxy statement in form and substance satisfactory to each of the Company and Parent, relating to the meeting of the Company's shareholders to be held to obtain the Company Shareholder Approval and the meeting of the Parent's Shareholders to obtain the Parent Shareholder Approval (together with any amendments thereof or supplements thereto, the "PROXY STATEMENT") and (ii) Parent shall prepare and file with the SEC a registration statement on Form F-4 (together with all amendments thereto, the "FORM F-4") in which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued to the shareholders of the Company pursuant to the Merger. As promptly as reasonably practicable after the date of this Agreement, Parent and the Company shall prepare and file with any other filings required under the Exchange Act, the Securities Act or any other Federal or Blue Sky Laws relating to the Merger and the transactions contemplated by this Agreement and the Merger Agreement, including, without limitation, under the HSR Act and state takeover laws (the "OTHER 50 55 FILINGS"). Each of Parent and the Company will notify the other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff or any other government officials for amendments or supplements to the Form S-4F-4, in which the Proxy Statement or any Other Filing or for additional information and will be included as a prospectussupply the other with copies of all correspondence between such company or any of its representatives, on the one hand, and the SEC, or its staff or any other government officials, on the other hand, with respect to the Form F-4, the Proxy Statement, the Merger or any Other Filing. The Proxy Statement, the Form F-4 and the Other Filings shall comply in all material respects with all applicable requirements of law. Each of Parent and the Company shall use all reasonable efforts to have cause the Form S-4 declared F-4 to become effective as promptly as reasonably practicable, and shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of Parent Common Stock pursuant to the Merger. Except as set forth in Sections 3.1(p) and 3.2(o), each of Parent and the Company shall furnish all information concerning itself to the other as the other may reasonably request in connection with such actions and the preparation of the Form F-4 and Proxy Statement. The Company authorizes Parent to utilize in the Form F-4 and in all such state filed materials, the information concerning the Company and its subsidiaries provided to Parent in connection with, or contained in, the Proxy Statement. Parent promptly will advise the Company when the Form F-4 has become effective and of any supplements or amendments thereto, and the Company shall not distribute any written material that would constitute, as advised by counsel to the Company, a "prospectus" relating to the Merger or the Parent Common Stock within the meaning of the Securities Act as or any applicable state securities law without the prior written consent of Parent. As promptly as reasonably practicable after such filing. The the Form F-4 shall have become effective, each of the Company and Parent shall use reasonable best efforts to cause mail the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effectiveits respective shareholders.
(b) If Parent agrees promptly to advise the Company if at any time prior to the Effective Time there shall occur (i) meeting of the Parent's Shareholders or the meeting of the Company's shareholders any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied provided by Company for inclusion it in the Form S-4 or the Proxy Statement is or (ii) becomes incorrect or incomplete in any event material respect and to provide the Company with respect the information needed to Parent, correct such inaccuracy or omission. Parent will furnish the Company with respect such supplemental information as may be necessary in order to information supplied by Parent for inclusion in the Form S-4 or cause the Proxy Statement, in either case, which event is required insofar as it relates to be described in an amendment of, or a supplementParent and its subsidiaries, to comply with applicable law after the Form S-4 mailing thereof to the Parent's Shareholders or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company's shareholders.
(c) The Company agrees promptly to advise Parent if at any time prior to the meeting of the Parent's Shareholders or the meeting of the Company's shareholders any information provided by it in the Proxy Statement is or becomes incorrect or incomplete 51 56 in any material respect and to provide Parent with the information needed to correct such inaccuracy or omission. The Company will furnish Parent with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to the Company and its subsidiaries, to comply with applicable law after the mailing thereof to the Parent's Shareholders or the Company's shareholders.
(d) As soon as practicable following the date of this Agreement, the Company shall call and hold a meeting of its shareholders (the "COMPANY SHAREHOLDERS' MEETING") and the Parent shall call and hold a meeting of the Parent's Shareholders (the "PARENT SHAREHOLDERS' MEETING"). The purpose of such meetings shall be to obtain the Company Shareholder Approval and the Parent Shareholder Approval, respectively. Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders MeetingShareholders' Meeting and Parent Shareholders' Meeting and shall use reasonable efforts to hold such meetings on the same day. Each of the Company and Parent shall use its best efforts to solicit from its shareholders proxies, and shall take all other action necessary or advisable to secure the vote or consent of shareholders required by applicable law or otherwise to obtain the Company Shareholder Approval and the Parent Shareholder Approval, respectively, and through its respective Board of Directors, shall recommend to its respective shareholders the obtaining of the Company Shareholder Approval and the Parent Shareholder Approval, respectively; provided that (i) the recommendation of the Board of Directors of the Company may not be included or may be withdrawn or modified if previously included if, following receipt of the Company Termination Fee Notice (as defined in Section 7.5(a)), the Company has paid the Company Termination Fee and the Company has accepted a Company Superior Proposal in accordance with the terms of Section 4.2 and (ii) the recommendation of the Board of Directors of Parent may not be included or may be withdrawn or modified if previously included if, following receipt of the Parent Termination Fee Notice (as defined in Section 7.5(b)), Parent has paid the Parent Termination Fee and Parent has accepted a Parent Superior Proposal in accordance with the terms of Section 4.3.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form PREPARATION OF THE FORM S-4, Proxy StatementPROXY STATEMENT; Stockholders MeetingSTOCKHOLDERS MEETING.
(a) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare prepare, and Parent shall file with the SEC SEC, the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act Act, and for the Proxy Statement to be cleared under the Exchange Act, as promptly as practicable after such filing. Without limiting any other provision hereinabove contained, the Form S-4 and the Proxy Statement will contain, without limitation, such information and disclosure reasonably requested by either Parent or the Company so that (i) the Form S-4 conforms in both form and substance to the requirements of the Securities Act, and (ii) the Proxy Statement conforms in both form and substance to the requirements of the Exchange Act. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiariesSubsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplementsupplement to, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and the other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company RecommendationCOMPANY RECOMMENDATION"); provided, however, that the Company's Board of Directors shall not be required to make such Company Recommendation to the extent that it is permitted to effect a Change in the Company Recommendation pursuant to Section 4.3. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation, provided, however, that if the Board of Directors of the Company shall have effected a Change in the Company Recommendation in accordance with this Agreement, then in submitting this Agreement to the Company's stockholders, the Board of Directors of the Company may submit this Agreement to the Company's stockholders without recommendation (although the resolutions adopting this Agreement and the Plan of Merger as of the date hereof may not be rescinded or amended), in which event the Board of Directors of the Company may communicate the basis for its lack of a recommendation to the Company's stockholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 6.01. Preparation of the Form S-4, S-4 and the Proxy Statement; Stockholders Meeting.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company shall prepare and the Company shall file with the SEC the Proxy Statement and Parent and the Company shall prepare and Parent shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each prospectus with respect to the issuance of Parent and Shares in the Company Merger. Parent shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall will use all reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the Company's stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Shares in the Merger, duly and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the Proxy Statement. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form S-4 will be made by Parent, or the Proxy Statement will be made by the Company, without providing the other party a reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of Parent Shares issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. The Company will advise Parent, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and 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 stockholders of the Company.
(b) The Company shall take all action necessary under all applicable laws to call, give notice of, convene of and hold a meeting of the holders of Company Common Stock to vote on a proposal to adopt this Agreement and approve the Merger (the "Stockholders Meeting"). The Stockholders Meeting shall be held (on a date selected by the Company in consultation with Parent) as promptly as practicable after the Form S-4 is declared effective under the Securities Act. The Company shall ensure that all proxies solicited in connection with the Stockholders Meeting are solicited in accordance compliance with all applicable laws. Notwithstanding the DGCL for foregoing provisions of Section 6.01(a) and (b) Parent shall have the purpose right to delay (i) the effectiveness of obtaining the Company Stockholder Approval and subject S-4 and/or (ii) date of the Stockholders Meeting if the condition to the parties obligation to close the Merger contained in Section 7.01(b) shall not be fulfilled.
(c) Subject to Section 4.3, 6.01(d): (i) the Proxy Statement shall include a statement to the effect that the Board of Directors of the Company recommends that the Company's stockholders vote to adopt this Agreement at the Stockholders Meeting (the recommendation of the Company's Board of Directors that the Company's stockholders vote to adopt this Agreement being referred to as the "Company Board Recommendation"); and (ii) the Company Board Recommendation shall recommend not be withdrawn or modified in a manner adverse to Parent, and no resolution by the Board of Directors of the Company or any committee thereof to withdraw or modify the Company Board Recommendation in a manner adverse to Parent shall be adopted or proposed.
(d) Notwithstanding anything to the contrary contained in Section 6.01(c), at any time prior to the adoption of this Agreement by the requisite Stockholder Approval, the Company Board Recommendation may be withdrawn or modified in a manner adverse to Parent if: (i) a proposal to acquire (by merger or otherwise) more than fifty percent of the outstanding shares of Company Common Stock is made to the Company and is not withdrawn; (ii) the Company provides Parent with at least two business days prior notice of any meeting of the Company's Board of Directors at which such Board of Directors will consider and determine whether such offer is a Superior Proposal; (iii) the Company's Board of Directors determines in good faith (based upon an opinion of an independent financial advisor of nationally recognized reputation) that such offer constitutes a Superior Proposal; (iv) the Company's Board of Directors determines in good faith, after having taken into account the written advice of the Company's outside legal counsel, that, in light of such Superior Proposal, the withdrawal or modification of the Company Board Recommendation is required in order for the Company's Board of Directors to comply with its fiduciary obligations to the Company's stockholders under applicable law; and (v) neither the approval and adoption Company nor any of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality its Representatives shall have violated any of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this restrictions set forth in Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of 5.04 in any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationmaterial respect.
(e) The Company Company's obligation to call, give notice of and hold the Stockholders Meeting in accordance with Section 6.01(b) shall coordinate and cooperate with Parent with respect to not be limited or otherwise affected by the timing commencement, disclosure, announcement or submission of any Superior Proposal or other Acquisition Proposal, or by any withdrawal or modification of the Company Board Recommendation.
(f) Notwithstanding anything to the contrary contained in this Agreement, if the Company Board Recommendation shall be withdrawn or modified in a manner adverse to Parent, then, at the request of Parent:
(i) the Company shall call, give notice of and hold the Stockholders Meeting on a date and at a time and place determined by Parent;
(ii) the Company shall set a record date for persons entitled to notice of, and to vote at, the Stockholders Meeting;
(iii) the Company shall cause its transfer agent to make a stockholder list and other stock transfer records relating to the Company available to Parent;
(iv) the Company shall waive any standstill or similar provisions applicable to Parent;
(v) a copy of the opinion of Company Financial Advisor shall be included in the Proxy Statement, provided that the Proxy Statement may also include such additional disclosure regarding such opinion as Company Financial Advisor may reasonably request; and
(vi) the Company shall render such other reasonable assistance to Parent in the solicitation of proxies by Parent in favor of the adoption of this Agreement as Parent shall request.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of Form S-4 and the Form S-4, Proxy Statement; Stockholders MeetingStockholders' Meetings.
(a) As promptly as reasonably practicable following after the date execution of this Agreement, Parent and (i) the Company and Parent shall prepare and file with the SEC a joint proxy statement/registration statement relating to the meetings of the Company's stockholders to be held to obtain the Company Stockholder Approval and of the Parent's stockholders to obtain the Parent Stockholder Approval (together with any amendments thereof or supplements thereto, the "PROXY STATEMENT") and (ii) Parent shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the "FORM S-4, ") in which the Proxy Statement will shall be included as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued to the stockholders of the Company pursuant to the Merger. Each of Parent and the Company shall use all its commercially reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy Statement Form S-4 to be mailed to holders become effective as promptly as practicable, and shall take all or any action required under any applicable federal or state securities laws in -28- 33 connection with the issuance of Company shares of Parent Common Stock pursuant to the Merger. Each of Parent and the Company shall furnish all information concerning itself to the other as the other may reasonably request in connection with such actions and the preparation of the Form S-4 and Proxy Statement. The Company authorizes Parent to utilize in the Form S-4 and in all such state filed materials, the information concerning the Company and its subsidiaries provided to Parent in connection with, or contained in, the Proxy Statement. Parent promptly will advise the Company when the Form S-4 has become effective and of any supplements or amendments thereto, and the Company shall not distribute any written material that would constitute, as advised by counsel to the Company, a "PROSPECTUS" relating to the Merger or the Parent Common Stock within the meaning of the Securities Act or any applicable state securities law without the prior written consent of Parent. As promptly as practicable after the Form S-4 is declared shall have become effective, each of the Company and Parent shall mail the Proxy Statement to its respective stockholders.
(b) If Parent agrees promptly to advise the Company if at any time prior to the Effective Time there shall occur (i) any event with respect to respective meetings of stockholders of Parent or the Company or any of its subsidiaries, or with respect to other information supplied provided by Company for inclusion it in the Form S-4 or the Proxy Statement is or (ii) becomes incorrect or incomplete in any event material respect and to provide the Company with respect the information needed to Parent, correct such inaccuracy or omission. Parent will furnish the Company with respect such supplemental information as may be necessary in order to information supplied by Parent for inclusion in the Form S-4 or cause the Proxy Statement, in either case, which event is required insofar as it relates to be described in an amendment of, or a supplementParent and its subsidiaries, to comply with applicable law after the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated mailing thereof to the stockholders of Parent or the Company.
(c) Each The Company agrees promptly to advise Parent if at any time prior to the respective meetings of stockholders of Parent or the Company any information provided by it in the Proxy Statement is or becomes incorrect or incomplete in any material respect and to provide Parent with the information needed to correct such inaccuracy or omission. The Company will furnish Parent with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to the Company and its subsidiaries, to comply with applicable law after the mailing thereof to stockholders of Parent or the Company.
(d) As soon as reasonably practicable following the date of this Agreement but taking into account the likely timing of obtaining regulatory approvals to complete the transactions contemplated herein, each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official call and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any hold a meeting of its representatives, or Parent or any of its representatives, as respective stockholders (the case may be, on the one hand, "COMPANY STOCKHOLDERS' MEETING" and the SEC or its staff or any other appropriate government official"PARENT STOCKHOLDERS' MEETING," respectively), on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3the Parent Stockholder Approval, the Board of Directors respectively. Each of the Company and Parent shall use its commercially reasonably efforts to solicit from its stockholders proxies, and shall take all other action necessary or advisable to secure the vote or consent of stockholders required by applicable law or otherwise to obtain the Company Stockholder Approval and the Parent Stockholder Approval, respectively, and through its respective Board of Directors, shall recommend to the Company's its respective stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders obtaining of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement Stockholder Approval and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationParent Stockholder Approval, respectively.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation The Company agrees that, upon the occurrence and during the continuance of a Default hereunder, it will, at any time and from time to time, upon the written request of the Form S-4Trustee, Proxy Statement; Stockholders Meeting.
use its best efforts to take or to cause the issuer of the Pledged Shares and any other securities distributed in respect of the Pledged Shares (a) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file collectively with the SEC Pledged Shares, the Form S-4"Pledged Securities") to take such action and prepare, distribute or file such documents, as are required or advisable in which the Proxy Statement will be included as a prospectus. Each reasonable opinion of Parent and counsel for the Company shall use all reasonable efforts Trustee to have permit the Form S-4 declared effective under the Securities Act as promptly as practicable after public sale of such filingPledged Securities. The Company shall use further agrees to indemnify, defend and hold harmless the Trustee, each Holder, any underwriter and their respective officers, directors, affiliates and controlling persons from and against all loss, liability, expenses, costs of counsel (including reasonable best efforts fees and expenses of legal counsel to cause the Proxy Statement Trustee), and claims (including the costs of investigation) that they may incur insofar as such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact required to be mailed stated therein or necessary to holders of Company Common Stock make the statements in any thereof not misleading, except insofar as promptly as practicable after the Form S-4 is declared effective.
(b) If at same may have been caused by any time prior to the Effective Time there shall occur (i) any event with respect untrue statement or omission based upon information furnished in writing to the Company or the issuer of such Pledged Securities by the Trustee or any of Holder expressly for use therein. The Company further agrees, upon such written request referred to above, to use its subsidiariesbest efforts to qualify, file or register, or with respect cause the issuer of such Pledged Securities to other information supplied by Company for inclusion in the Form S-4 qualify, file or the Proxy Statement or (ii) any event with respect to Parentregister, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with Pledged Securities under the SEC in connection with Blue Sky or other securities laws of such states as may be requested by the Merger Trustee and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representativeskeep effective, or Parent cause to be kept effective, all such qualifications, filings or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect theretoregistrations. The Company will bear all costs and Parent shall use their respective reasonable best efforts to respond to any comments expenses of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicablecarrying out its obligations under this Section 11.13. The Company and Parent shall cooperate with each other and provide acknowledges that there is no adequate remedy at law for failure by it to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance comply with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence provisions of this Section 5.1(d) shall 11.13 and that such failure would not be affected by the commencementadequately compensable in damages, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change and therefore agree that their agreements contained in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall Section 11.13 may be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationspecially enforced.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 5.01. Preparation of the Form S-4, S-4 and the Proxy Statement; Stockholders Shareholders' Meeting.
(a) As promptly as practicable following the date of this Agreement, Parent and the Company and Parent shall prepare and Parent shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company and Parent shall use all its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each shareholders of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities Laws in connection with the issuance of shares of Parent Common Stock in the Merger, and each of Parent and the Company shall furnish all information as may be reasonably requested by the other in connection with any such action and the preparation, filing and distribution of the Form S-4 and the Proxy Statement. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to, the Proxy Statement will made by the Company, in each case without providing the other party a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, directors or officers, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement, so that either such document 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 are made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and 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 shareholders of the Company. The parties shall notify each other promptly of the time when the Form S-4 has become effective, of the issuance of any stop order or suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of (i) all correspondence between it or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger and (ii) all orders of the SEC relating to the Form S-4.
(b) The Company shall use its reasonable best efforts to, within 120 days following the date of this Agreement, establish a record date for, duly call, give notice of, convene and hold a meeting of its shareholders (the Company Stockholders Meeting in accordance with the DGCL "Shareholders' Meeting") solely for the purpose of obtaining the Company Stockholder Approval and subject Shareholder Approval. Subject to Section 4.34.02, the Company shall, through its Board of Directors of the Company shall Directors, recommend to the Company's stockholders the its shareholders approval and adoption of this Agreement, Agreement and shall include such recommendation in the Merger and the other transactions contemplated hereby (the "Company Recommendation")Proxy Statement. Without limiting the generality of the foregoing, but subject to the Company agrees that its terms of this Agreement, the Company's obligations pursuant to the first sentence of this Section 5.1(d5.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Guidant Corp)
Additional Agreements. SECTION 5.1 Section 6.01. Preparation of the Form S-4, S-4 and the Proxy Statement; Stockholders MeetingStockholder Meetings.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Proxy Statement and the Company and Parent shall prepare and Parent shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company and Parent shall use all its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filingfiling and keep the Form S-4 effective for so long as necessary to consummate the Merger. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting . Parent shall also take any action required to be taken under any applicable state securities Laws in accordance connection with the DGCL for issuance of shares of Parent Common Stock in the purpose of obtaining the Company Stockholder Approval Merger, and subject to Section 4.3, the Board of Directors of the Company shall recommend furnish all information concerning the Company and the holders of shares of Company Common Stock as may be reasonably requested by Parent in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to the Proxy Statement will made by the Company's stockholders the approval and adoption of this Agreement, the Merger and without providing the other transactions contemplated hereby (the "Company Recommendation")party and its counsel a reasonable opportunity to review and comment thereon. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant If at any time prior to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication Effective Time any information relating to the Company or Parent, or any of any Company Takeover Proposal. Notwithstanding any Change in their respective Affiliates, directors or officers, should be discovered by the Company Recommendationor Parent which should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement, unless otherwise directed so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in writing by Parentlight of the circumstances under which they were made, this Agreement not misleading, the party which discovers such information shall promptly notify the other parties hereto and the Merger an appropriate amendment or supplement describing such information shall be submitted promptly filed with the SEC and, to the extent required by Law, disseminated to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.of
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement6.01. PREPARATION OF FORM F-4 AND PROXY STATEMENT/PROSPECTUS OR INFORMATION STATEMENT/PROSPECTUS; Stockholders MeetingSTOCKHOLDERS MEETING/WRITTEN CONSENT.
(a) As promptly If required by Law in order to consummate the Merger, as soon as practicable following the date expiration of this Agreementthe Offer, Parent and the Company shall prepare and file with the SEC (i) a post-effective amendment to the Form S-4, F-4 for the offer and sale of the Parent ADSs pursuant to the Merger and in which a proxy statement prepared by the Proxy Statement Company and Parent relating to the Company Stockholders Meeting (as amended or supplemented from time to time, the "PROXY STATEMENT") or an information statement prepared by the Company and Parent pursuant to Rule 14c-2 under the Exchange Act (as amended or supplemented from time to time, the "INFORMATION STATEMENT"), as applicable, which will contain the information required under Rule 13e-3 under the Exchange Act, will be included as a prospectus. Each of Parent prospectus (the "POST-EFFECTIVE AMENDMENT") and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy (ii) together with Merger Sub, a Rule 13e-3 Transaction Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event on Schedule 13E-3 with respect to the Company Merger (as supplemented or any of its subsidiariesamended, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) "SCHEDULE 13E-3"). Each of the Company and Parent shall promptly notify the other (and each shall also notify the Special Committee and its counsel) promptly of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests request by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with Post-Effective Amendment, the SEC in connection with Proxy Statement, the Merger and other transactions contemplated hereby Information Statement or the Schedule 13E-3 or for additional information and shall supply the other with copies of all correspondence between the Company it or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government officialstaff, on the other hand, with respect theretoto the Post-Effective Amendment, the Proxy Statement, the Information Statement or the Schedule 13E-3. The Each of the Company and Parent shall use their respective its reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. No filing of, or amendment or supplement to, or correspondence to the Form S-4 and SEC or its staff with respect to, the Post-Effective Amendment, the Proxy Statement, the Information Statement as promptly as practicableor the Schedule 13E-3 will be made by either party, without providing the other party a reasonable opportunity to review and comment thereon. The Each of the Company and Parent shall cooperate with each other and provide use its reasonable best efforts to each other all information necessary in order have the Post-Effective Amendment declared effective under the Securities Act as promptly as practicable after its filing. The Company will use its reasonable best efforts to prepare the Form S-4 and cause the Proxy Statement or Information Statement, and shall provide promptly as applicable, to be mailed to holders of the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, Company's capital stock as promptly as practicable after the Form S-4 Post-Effective Amendment is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent ADSs pursuant to the Offer and the Merger, and the Company shall furnish all information concerning the Company and its stockholders as may be reasonably requested in connection with any such action and the preparation, filing and/or distribution of the Proxy Statement, the Information Statement and the Schedule 13E-3. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Post-Effective Amendment, the Proxy Statement, the Information Statement or the Schedule 13E-3, so that any of such documents would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto, and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated by the Company to holders of the Company's capital stock.
(b) If required by Law in order to consummate the Merger, the Company shall establish, prior to or as soon as practicable following the date upon which the Post-Effective Amendment becomes effective, a record date (which shall be prior to or as soon as practicable following the date upon which the Post-Effective Amendment becomes effective), and either duly call, give notice of, convene and hold a meeting of holders of the Company's capital stock (the "COMPANY STOCKHOLDERS MEETING") or follow all required procedures in soliciting consents from holders of Company Stockholders Meeting in accordance with the DGCL Common Stock, for the purpose of obtaining seeking the Company Stockholder Approval and subject to Section 4.3Approval, as applicable. In such event, the Proxy Statement or the Information Statement, as the case may be, shall include a description of the recommendations referred to in Section 3.03(b), and neither the Company Board of Directors nor any committee thereof shall withdraw or modify, or propose to withdraw or modify such recommendations or related approval; PROVIDED, HOWEVER, that the Company Board or the Special Committee may determine not to make such recommendations or such recommendations may be withdrawn or modified to the extent that the Special Committee determines in good faith, after consultation with outside legal counsel, that such recommendations would be inconsistent with its fiduciary duties to stockholders of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation")under applicable law. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d6.01(b) shall not be affected by the commencement, public proposal, public disclosure withdrawal or communication to modification by either the Company Board or the Special Committee of its approval or recommendation of this Agreement, the Offer or the Merger.
(c) Notwithstanding the foregoing, if Parent, Merger Sub or any Company Takeover Proposal. Notwithstanding any Change in other subsidiary of Parent (other than the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and or any of its subsidiaries) shall acquire at least 90% of the Merger shall be submitted to the stockholders outstanding shares of each class of capital stock of the Company entitled to vote on a merger and if permitted by Section 253 of the DGCL, at Parent's sole discretion, the Company Stockholders Meeting for the purpose of approving the Agreement parties shall take all necessary and appropriate action to cause the Merger and nothing contained herein shall be deemed to relieve become effective as soon as practicable after the Company expiration of such obligationthe Offer without a stockholders meeting or written consent in accordance with Section 253 of the DGCL (a "SHORT-FORM MERGER").
(ed) The Parent shall cause Merger Sub to vote any shares of Company shall coordinate Common Stock owned by it and cooperate with Parent with respect to not held in the timing Voting Trust in favor of the Company Stockholders Meetingadoption of this Agreement, if applicable.
Appears in 1 contract
Sources: Merger Agreement (Axa)
Additional Agreements. SECTION 5.1 Preparation Without limitation or contravention of the Form S-4provisions of Section 4.03, Proxy Statement; Stockholders Meeting.
(a) As promptly as practicable following and subject to the date terms and conditions of this Agreement, Parent and the Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use commercially reasonable best efforts to take, or cause the Proxy Statement to be mailed taken, all actions necessary to holders of Company Common Stock as promptly as practicable after consummate the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation")Transactions. Without limiting the generality of the foregoing, subject to the terms and conditions of this Agreement, each Party to this Agreement shall (a) make all filings (if any), maintain or obtain all Consents (if any) and give all notices (if any) required to be made and given by such Party in connection with the Transactions pursuant to any applicable Law or Material Contract set forth in Section 4.06 of the Company agrees Disclosure Schedule, (b) use commercially reasonable best efforts to lift any restraint, injunction or other legal bar (other than with respect to Antitrust Laws and Foreign Direct Investment Laws) to this Agreement or the Arrangement brought by any third Person against such Party, (c) use commercially reasonable best efforts to satisfy all conditions precedent in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the Arrangement, (d) cooperate with the other Parties in connection with the performance by it and its Subsidiaries of their obligations hereunder, (e) carry out the terms of the Interim Order and the Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the Arrangement, and (f) not take any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, in each case, which is inconsistent with this Agreement or would reasonably be expected to prevent, materially delay or otherwise impede the consummation of the Arrangement or the transactions contemplated by this Agreement. This Section 4.06 shall not apply to approval under Antitrust Laws or Foreign Direct Investment Laws, which are the subject of Section 4.03. The Company shall give notice to Parent as promptly as reasonably practicable after (and shall subsequently keep Parent informed on a reasonably current basis of any developments related to such notice) it becomes aware of (i) the receipt of any notice from any Person alleging that its obligations pursuant the Consent of such Person is or may be required in connection with any of the Transactions or (ii) that any Legal Proceeding has been commenced or threatened in writing relating to or involving the Company or any Company Subsidiary that relates to the first sentence consummation of this Section 5.1(d) the Transactions. For the avoidance of doubt, the Company shall not be affected required to pay for any such consent, nor shall obtaining any such filing, notice or consent be a condition precedent to the Closing. During the Pre-Closing Period, the Company and its Subsidiaries shall keep Parent promptly informed in writing of any material communication (written or oral) with or from the FDA, Health Canada, or any other Governmental Body performing functions similar to those performed by the commencement, public proposal, public disclosure or communication FDA related to a Company Product. The Company and the Company of Subsidiaries shall consult with, and consider any Company Takeover Proposalcomment from, Parent in good faith prior to making any material submissions to or having material discussions with the FDA, Health Canada, or any other Governmental Body performing functions similar to those performed by the FDA. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect ensure that it has available (on hand or through capacity under a credit facility) funds to pay the timing of the Company Stockholders MeetingTermination Payment, if payable.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Section 7.01 Proxy Statement, Information Statement, Other Filings and Form S-4, Proxy Statement; Stockholders Meeting.
(a) As promptly as reasonably practicable following the date of this Agreement, the Company Parties shall prepare and, once reasonably acceptable to Parent and the Company shall prepare and Parties, file with the SEC the Form S-4preliminary Proxy Statement and each of the Company Parties and Buyer Parties shall, or shall cause their respective Affiliates to, prepare and, after consultation with each other, file with the SEC all Other Filings that are required to be filed by such party in which connection with the transactions contemplated hereby. Each of the Company Parties and Buyer Parties shall furnish all information concerning itself and its affiliates that is required to be included in the Proxy Statement will be and the Information Statement or, to the extent applicable, the Other Filings, or that is customarily included as a prospectusin proxy statements and information statements prepared in connection with transactions of the type contemplated by this Agreement. Each of Parent the Company Parties and Buyer Parties shall use its commercially reasonable efforts, after consultation with the other, to respond as promptly as practicable to any comments of the SEC with respect to the Proxy Statement or the Other Filings, and the Company shall use all its commercially reasonable efforts to have cause (i) the Form S-4 declared effective under definitive Proxy Statement to be filed with, and cleared by, the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts SEC, (ii) the Information Statement to cause be filed with the SEC and (iii) the definitive Proxy Statement and the Information Statement to be mailed to holders of the Company Common Stock Shareholders and the Operating Trust Unitholders, respectively, as promptly as reasonably practicable after following clearance from the Form S-4 is declared effective.
(b) If at any time prior to SEC of the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the definitive Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the . The Company and Parent shall promptly notify the other of Parent upon the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by request from the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with Proxy Statement or the SEC in connection with the Merger and other transactions contemplated hereby or for additional information Other Filings and shall supply the other promptly provide Parent with copies of all correspondence between the Company or any of and its representatives, or Parent or any of its representatives, as the case may beRepresentatives, on the one hand, and the SEC or and its staff or any other appropriate government officialstaff, on the other hand, with respect theretorelating to the Proxy Statement or the Other Filings. The If at any time prior to the Company and Parent shall use Shareholders’ Meeting, any information relating to the Company Parties or the Buyer Parties or any of their respective reasonable best efforts affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to respond the Proxy Statement, the Information Statement or the Other Filings, so that the Proxy Statement, the Information Statement or the Other Filings shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the shareholders of the Company. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement, the Information Statement or filing the Other Filings (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide Parent a reasonable opportunity to review and comment on such document or response and will include in such documents or responses all comments reasonably proposed by Parent, and to the extent practicable, the Company will provide Parent with the opportunity to participate in any substantive calls between the Company, or any of its Representatives, and the SEC concerning the Proxy Statement.
(b) As promptly as reasonably practicable following the date of this Agreement, the Company Parties shall prepare and, once reasonably acceptable to Parent and the Company Parties, file with the SEC the Form S-4 in connection with the registration under the Securities Act of the Series O Preferred Units to be issued in connection with the Operating Trust Merger in accordance with Section 3.02(a), which Form S-4 shall include one or more prospectuses (such offers and proxy statements, together with any amendments or supplements thereto, the “S-4 Related Documents”). The Form S-4 shall also contain the information required for the Information Statement. The S-4 Related Documents shall set forth the procedures, reasonably acceptable to the Company and the Operating Trust, for holders of the Operating Trust Class A-1 Common Units to make an Election, including the deadline for making an Election and the procedures (if any) for revoking an Election. The Company Parties and the Buyer Parties shall cause the Form S-4 and S-4 Related Documents to comply as to form in all material respects with the Proxy Statement as promptly as practicableapplicable provisions of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the S-4 or S-4 Related Documents and shall promptly provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the S-4 or S-4 Related Documents. If at any time prior to the completion of the Election, any information relating to the Company Parties or the Buyer Parties or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the S-4 or S-4 Related Documents, so that the S-4 or S-4 Related Documents shall cooperate with each other and provide not contain any untrue statement of a material fact or omit to each other all information state any material fact required to be stated therein or necessary in order to prepare make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the Operating Trust Unitholders. Notwithstanding anything to the contrary stated above, prior to filing the S-4 or S-4 Related Documents (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide Parent a reasonable opportunity to review and comment on such document or response and will include in such documents or responses all comments reasonably proposed by Parent, and to the extent practicable, the Company will provide Parent with the opportunity to participate in any substantive calls between the Company, or any of its Representatives, and the SEC concerning the S-4. Each of the Company Parties shall use its commercially reasonable efforts, and the Buyer Parties shall cooperate with the Buyer Parties, to have the Form S-4 declared effective by the SEC as promptly as practicable (including clearing the S-4 Related Documents with the SEC) and kept effective as long as is necessary to complete the Operating Trust Merger and the Proxy StatementElection. The Company Parties shall promptly notify Parent, if applicable, of (i) the time when the Form S-4 has become effective, (ii) the filing of any supplement or amendment thereto, (iii) the issuance of any stop order, and (iv) the suspension of the qualification and registration of the Series O Preferred Unit. The Company Parties also shall provide promptly use commercially reasonable efforts (including by provision of customary representations and certifications) to cause H▇▇▇▇ & H▇▇▇▇▇▇ LLP or other counsel reasonably satisfactory to Parent to have delivered an opinion, which opinion shall be filed as an exhibit to the Form S-4, as to federal income tax matters as are required to be addressed in the Form S-4. Parent shall use commercially reasonable efforts (including by provision of customary representations and certifications) to cause Wachtell, Lipton, R▇▇▇▇ & K▇▇▇ or other party any information such party may obtain that could necessitate amending any such document.
(d) counsel reasonably satisfactory to the Company Parties to have delivered an opinion, which opinion shall be filed with the SEC as an exhibit to the Form S-4, as to federal income tax matters as are required to be addressed in the Form S-4. Such opinions shall contain customary exceptions, assumptions and qualifications and be based upon customary representations. The Company shallOperating Trust shall mail the S-4 Related Documents to the Operating Trust Unitholders, as applicable, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationhave become effective.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of S-4 and the Form S-4, Proxy Statement; Stockholders Meeting.
(a) As . Pogo and Arch shall promptly as practicable following prepare and file with the date of this Agreement, Parent SEC the Proxy Statement and the Company Pogo shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent Pogo and the Company Arch shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company Each of Arch and Pogo shall use all reasonable best efforts to cause the Proxy Statement to be mailed to stockholders of Arch at the earliest practicable date. Pogo shall use all reasonable efforts to obtain all necessary state securities laws or "blue sky" permits, approvals and registrations in connection with the issuance of Pogo Common Stock in the Merger and upon the exercise of Arch Stock Options (as defined in Section 5.8), and Arch shall furnish all information concerning Arch and the holders of Company Arch Common Stock and Convertible Preferred Stock as promptly as practicable after the Form S-4 is declared effective.
(b) may be reasonably requested in connection with obtaining such permits, approvals and registrations. If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company Arch or any of its subsidiariesSubsidiaries, or with respect to other information supplied by Company Arch for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parentthe S-4, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, shall occur which event is required to be described in an amendment of, or a supplementsupplement to, to the Form S-4 Proxy Statement or the Proxy StatementS-4, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each Arch. The Proxy Statement and the S-4, insofar as it relates to Arch or its Subsidiaries or other information supplied by Arch for inclusion therein, will comply as to form in all material respects with the provisions of the Company Exchange Act and Parent shall promptly notify the other of rules and regulations thereunder. If at any time prior to the receipt of Effective Time any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements event with respect to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company Pogo or any of its representativesSubsidiaries, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to other information supplied by Pogo or Sub for inclusion in the Form S-4 S-4, shall occur which is required to be described in an amendment of, or a supplement to, the S-4, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC. The S-4, insofar as it relates to Pogo, Sub or other Subsidiaries of Pogo or other information supplied by Pogo or Sub for inclusion therein, will comply as to form in all material respects with the provisions of the Exchange Act and the Proxy Statement as promptly as practicable. The Company rules and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such documentregulations thereunder.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 5.01. Preparation of the Form S-4, S-4 and the Proxy Statement; Stockholders MeetingShareholders' Meetings.
(a) As promptly as practicable following after the date execution of this Agreement, (i) Parent and the Company shall prepare and file with the SEC the proxy statement (as amended or supplemented from time to time, the "Proxy Statement") to be sent to the shareholders of the Company relating to the meeting of the Company's shareholders (the "Company Shareholders' Meeting") to be held to consider approval of this Agreement and to be sent to the stockholders of Parent relating to the meeting of Parent's stockholders to be held to vote on the Amendment and Share Issuance (the "Parent Stockholders' Meeting" and, together with the Company Shareholders' Meeting, the "Shareholders' Meetings") and (ii) Parent shall prepare and file with the SEC a registration statement on Form S 4 (as amended or supplemented from time to time, the "Form S-4"), in which the Proxy Statement will be included as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued in the Share Issuance. Each of Parent and the Company shall use all its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and, prior to the effective date of the Form S-4, Parent shall take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities Laws in connection with the issuance of shares of Parent Common Stock in the Merger. The Each of Parent and the Company shall furnish all information as may be reasonably requested by the other in connection with any such action and the preparation, filing and distribution of the Form S-4 and the Proxy Statement. As promptly as practicable after the Form S-4 shall have become effective, each of Parent and the Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after its respective shareholders and stockholders. No filing of, or amendment or supplement to, the Form S-4 is declared effective.
(b) will be made by Parent, and no filing of, or amendment or supplement to, the Proxy Statement will made by the Company, in each case without providing the other party a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time there shall occur (i) any event with respect information relating to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect any of their respective Affiliates, directors or officers, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to information supplied by Parent for inclusion in either the Form S-4 or the Proxy Statement, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in either caselight of the circumstances under which they are made, not misleading, the party which event is required to be described in discovers such information shall promptly notify the other parties hereto and an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, as to the extent required by lawLaw, disseminated to the stockholders of Company.
(c) Each shareholders of the Company and Company. The parties shall notify each other promptly of the time when the Form S-4 has become effective, of the issuance of any stop order or suspension of the qualification of the Parent shall promptly notify Common Stock issuable in connection with the other Merger for offering or sale in any jurisdiction, or of the receipt of any comments from the SEC or its the staff or any other appropriate government official of the SEC and of any requests request by the SEC or its the staff or any other appropriate government official of the SEC for amendments or supplements to any of the filings with Proxy Statement or the SEC in connection with the Merger and other transactions contemplated hereby Form S-4 or for additional information and shall supply the each other with copies of (i) all correspondence between the Company it or any of its representatives, or Parent or any of its representatives, as the case may beRepresentatives, on the one hand, and the SEC or its the staff or any other appropriate government officialof the SEC, on the other hand, with respect thereto. to the Proxy Statement, the Form S-4 or the Merger and (ii) all orders of the SEC relating to the Form S-4.
(b) The Company and Parent shall use their respective its reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement to, as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Actestablish a record date for, duly call, give notice of, convene and hold the Company Stockholders Shareholders' Meeting in accordance with the DGCL solely for the purpose of obtaining the Company Stockholder Approval and subject Shareholder Approval. Subject to Section 4.34.02, the Company shall, through its Board of Directors of the Company shall Directors, recommend to the Company's stockholders the its shareholders approval and adoption of this Agreement, Agreement and shall include such recommendation in the Merger and the other transactions contemplated hereby (the "Company Recommendation")Proxy Statement. Without limiting the generality of the foregoing, but subject to the Company agrees that its terms of this Agreement, the Company's obligations pursuant to the first sentence of this Section 5.1(d5.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal.
(c) Parent shall use its reasonable best efforts to, as promptly as practicable, establish a record date for, duly call, give notice of, convene and hold the Parent Stockholders' Meeting solely for the purpose of obtaining the Parent Stockholder Approval. Notwithstanding any Change Parent shall, through its Board of Directors, recommend to its stockholders that they vote in favor of the Amendment and Share Issuance and shall include such recommendation in the Company Proxy Statement (the "Parent Recommendation"). The Board of Directors of Parent shall not withdraw (or modify in a manner adverse to the Company), unless otherwise directed or publicly propose to withdraw (or modify in writing a manner adverse to the Company), the Parent Recommendation; provided, however, that none of the following shall constitute a breach of this Section 5.01(c): (1) the disclosure by Parent, this Agreement and the Merger shall be submitted Board of Directors of Parent or Parent of any factual information to the stockholders of Parent that is required to be made to such stockholders under applicable Law or (ii) the Company at disclosure to such stockholders of any conclusions that would have been made by the Company Stockholders Meeting for the purpose Board of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company Directors of Parent based on such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect information had such information existed on or prior to the timing date of the Company Stockholders Meetingthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Guidant Corp)
Additional Agreements. SECTION 5.1 Preparation of Form S-4 and the Form S-4, Proxy Statement; Stockholders MeetingStockholders' Meetings.
(a) As promptly as reasonably practicable following after the date execution of this Agreement, Parent and (i) the Company and Parent shall prepare and file with the SEC a joint proxy statement/registration statement relating to the meetings of the Company's stockholders to be held to obtain the Company Stockholder Approval and of the Parent's stockholders to obtain the Parent Stockholder Approval (together with any amendments thereof or supplements thereto, the "PROXY STATEMENT") and (ii) Parent shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the "FORM S-4, ") in which the Proxy Statement will shall be included as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued to the stockholders of the Company pursuant to the Merger. Each of Parent and the Company shall use all its commercially reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy Statement Form S-4 to be mailed to holders become effective as promptly as practicable, and shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of Company shares of Parent Common Stock pursuant to the Merger. Each of Parent and the Company shall furnish all information concerning itself to the other as the other may reasonably request in connection with such actions and the preparation of the Form S-4 and Proxy Statement. The Company authorizes Parent to utilize in the Form S-4 and in all such state filed materials, the information concerning the Company and its subsidiaries provided to Parent in connection with, or contained in, the Proxy Statement. Parent promptly will advise the Company when the Form S-4 has become effective and of any supplements or amendments thereto, and the Company shall not distribute any written material that would constitute, as advised by counsel to the Company, a "PROSPECTUS" relating to the Merger or the Parent Common Stock within the meaning of the Securities Act or any applicable state securities law without the prior written consent of Parent. As promptly as practicable after the Form S-4 is declared shall have become effective, each of the Company and Parent shall mail the Proxy Statement to its respective stockholders.
(b) If Parent agrees promptly to advise the Company if at any time prior to the Effective Time there shall occur (i) any event with respect to respective meetings of stockholders of Parent or the Company or any of its subsidiaries, or with respect to other information supplied provided by Company for inclusion it in the Form S-4 or the Proxy Statement is or (ii) becomes incorrect or incomplete in any event material respect and to provide the Company with respect the information needed to Parent, correct such inaccuracy or omission. Parent will furnish the Company with respect such supplemental information as may be necessary in order to information supplied by Parent for inclusion in the Form S-4 or cause the Proxy Statement, in either case, which event is required insofar as it relates to be described in an amendment of, or a supplementParent and its subsidiaries, to comply with applicable law after the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated mailing thereof to the stockholders of Parent or the Company.
(c) Each The Company agrees promptly to advise Parent if at any time prior to the respective meetings of stockholders of Parent or the Company any information provided by it in the Proxy Statement is or becomes incorrect or incomplete in any material respect and to provide Parent with the information needed to correct such inaccuracy or omission. The Company will furnish Parent with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to the Company and its subsidiaries, to comply with applicable law after the mailing thereof to stockholders of Parent or the Company.
(d) As soon as reasonably practicable following the date of this Agreement but taking into account the likely timing of obtaining regulatory approvals to complete the transactions contemplated herein, each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official call and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any hold a meeting of its representatives, or Parent or any of its representatives, as respective stockholders (the case may be, on the one hand, "COMPANY STOCKHOLDERS' MEETING" and the SEC or its staff or any other appropriate government official"PARENT STOCKHOLDERS' MEETING," respectively), on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3the Parent Stockholder Approval, the Board of Directors respectively. Each of the Company and Parent shall use its commercially reasonably efforts to solicit from its stockholders proxies, and shall take all other action necessary or advisable to secure the vote or consent of stockholders required by applicable law or otherwise to obtain the Company Stockholder Approval and the Parent Stockholder Approval, respectively, and through its respective Board of Directors, shall recommend to the Company's its respective stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders obtaining of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement Stockholder Approval and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationParent Stockholder Approval, respectively.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement6.1 PREPARATION OF PROXY STATEMENT; Stockholders MeetingSTOCKHOLDER MEETING; COMFORT LETTERS.
(a) As promptly as practicable Promptly following the date of this Agreement, Parent and the Company shall prepare the Schedule 13E-3 with respect to the transactions contemplated by this Agreement and file a proxy statement (the "Proxy Statement") required to be distributed to holders of Common Stock in connection with the SEC Merger and include therein the Form S-4recommendation of the Company Board that the stockholders of the Company vote in favor of the approval and adoption of this Agreement and include therein the written opinion of the Financial Adviser that the cash consideration to be received by the stockholders of the Company pursuant to the Merger is fair, from a financial point of view, to such stockholders; provided, however, that the Company Board may fail to make or may withdraw or modify such recommendation, if, in which the Proxy Statement will be included as a prospectus. Each of Parent and accordance with Section 5.1, the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filingBoard recommends a Superior Proposal. The Company shall use its reasonable best efforts to obtain and furnish the information required to be included by it in the Proxy Statement and Schedule 13E-3 and, after consultation with ERP, respond promptly to any comments made by the Securities and Exchange Commission (the "SEC") with respect to the Proxy Statement and Schedule 13E-3 and any preliminary version thereof, ERP and Newco will cooperate with the Company in connection with the preparation of the Proxy Statement and Schedule 13E-3 including, but not limited to, furnishing to the Company any and all information regarding ERP as may be required to be disclosed therein. The Company will use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock the Company's stockholders as promptly as practicable after the Form S-4 is declared effectivepracticable.
(b) If at any time prior All filings with the SEC and all mailings to the Effective Time there shall occur (i) any event Company's stockholders in connection with respect to the Company or any of its subsidiariesMerger, or with respect to other information supplied by Company for inclusion in the Form S-4 or including the Proxy Statement or (ii) any event with respect to Parentand Schedule 13E-3, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to shall be described in an amendment of, or a supplement, subject to the Form S-4 or the Proxy Statementprior review, such event shall be so described, comment and approval of ERP and Newco (and such amendment approval shall not be unreasonably withheld or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Companydelayed).
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after following the Form S-4 is declared effective under the Securities Actdate of this Agreement and in consultation with ERP and Newco, duly call, call and give notice of, and, provided that this Agreement has not been terminated, convene and hold hold, the Company Stockholders Stockholders' Meeting in accordance with the DGCL for the purpose of obtaining approving this Agreement and the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend transactions contemplated by this Agreement to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby extent required by Ohio Law (the "Company RecommendationStockholders' Meeting"). Without limiting The Company will use reasonable best efforts to hold such meeting as soon as practicable after the generality date hereof.
(d) Upon the request of the foregoingERP, the Company agrees that its obligations pursuant shall use reasonable best efforts to the first sentence of this Section 5.1(d) shall not cause to be affected by the commencement, public proposal, public disclosure or communication delivered to the Company and ERP a letter of any Company Takeover Proposal. Notwithstanding any Change in PricewaterhouseCoopers LLP, the Company RecommendationCompany's independent public accountants, unless otherwise directed in writing by Parent, this Agreement and dated a date within two (2) business days before the Merger shall be submitted date of mailing the Proxy Statement to the stockholders of the Company at and a letter of PricewaterhouseCoopers LLP dated a date within two (2) business days before the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect Stockholders' Meeting, addressed to the timing of Company, in each case customary in scope and substance for letters delivered by independent public accountants in connection with proxy statements similar to the Company Stockholders MeetingProxy Statement; provided, however, that such letters shall only be delivered to the extent permitted under accounting principles and pronouncements applicable to the U.S. accounting profession.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement; Stockholders MeetingSection 6.01 Schedule 13E-3.
(a) As promptly soon as practicable following the date of this Agreement, but in any event within fifteen (15) Business Days after the date hereof, the Company, Parent and the Company Merger Sub shall jointly prepare and file cause to be filed with the SEC a Rule 13e-3 transaction statement on Schedule 13E-3 (such Schedule 13E-3, as amended or supplemented, being referred to herein as the Form S-4“Schedule 13E-3”). Each of the Company, Parent and Merger Sub shall use its reasonable best efforts to ensure that the Schedule 13E-3 complies in which all material respects with the Proxy Statement will be included as a prospectusrequirements of the Exchange Act and the rules and regulations promulgated thereunder. Each of the Company, Parent and Merger Sub shall use its reasonable best efforts to respond promptly to any comments of the SEC with respect to the Schedule 13E-3. Each of Parent and the Company Merger Sub shall use all provide reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect assistance and cooperation to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parentpreparation, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, filing and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each mailing/distribution of the Company Schedule 13E-3 and Parent shall promptly notify the other resolution of comments from the SEC. Upon its receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by request from the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with Schedule 13E-3, the SEC in connection with the Company shall promptly notify Parent and Merger and other transactions contemplated hereby or for additional information Sub and shall supply the other provide Parent with copies of all correspondence between the Company or any of and its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or and its staff or any other appropriate government officialstaff, on the other hand, with respect . Prior to filing the Schedule 13E-3 (or any amendment or supplement thereto. The Company and Parent shall use their respective reasonable best efforts to respond ) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent and Merger Sub with a reasonable period of time to review and comment on such document or response and (ii) shall consider in good faith all additions, deletions or changes reasonably proposed by Parent in good faith.
(b) Each of Parent, Merger Sub and the Company agrees, as to itself and its respective Affiliates or Representatives, that none of the information supplied or to be supplied by Parent, Merger Sub or the Company, as applicable, expressly for inclusion or incorporation by reference in the Schedule 13E-3 or any other documents filed or to be filed with the SEC in connection with the Transactions, will, as of the time such documents (or any amendment thereof or supplement thereto) are mailed to the Form S-4 holders of Shares, contain any untrue statement of a material fact, or omit to state any material fact required to be stated therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Sub and the Proxy Statement Company further agrees that all documents that such party is responsible for filing with the SEC in connection with the Merger will comply as promptly as practicable. The Company to form and Parent shall cooperate substance in all material respects with each the applicable requirements of the Securities Act, the Exchange Act and any other applicable Laws and provide to each other that all information supplied by such party for inclusion or incorporation by reference in such document will not contain any untrue statement of a material fact, or omit to state any material fact required to be stated therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If at any time prior to the Effective Time, any information, fact or circumstance relating to the Company, Parent, Merger Sub or any of their respective Affiliates, or any of their respective officers or directors, is discovered that should be set forth in an amendment or supplement to the the Schedule 13E-3 so that such Schedule 13E-3 will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to prepare make the Form S-4 statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information, fact or circumstance shall promptly notify the other parties hereto and the Proxy StatementCompany shall file an appropriate amendment or supplement describing such information with the SEC and, to the extent required by applicable Law, disseminate such to the shareholders of the Company; provided, that prior to such filing, the Company and Parent, as the case may be, shall consult with each other with respect to such amendment or supplement and shall provide promptly to afford the other party any information such party may obtain that could necessitate amending any such documentand their Representatives a reasonable opportunity to comment thereon.
(dc) The Company shall, as promptly As soon as practicable after the Form S-4 is declared effective under SEC staff confirms that it has no further comments on the Securities ActSchedule 13E-3 but in any event no later than three (3) days after such confirmation, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend (i) mail/distribute or cause to be mailed/distributed the Schedule 13E-3 (together with the Plan of Merger) to the Company's stockholders holders of Shares, including Shares represented by ADSs, as of the approval and adoption date of this Agreement, such distribution of the Merger and the other transactions contemplated hereby Schedule 13E-3 (the "Company Recommendation"“Record Date”). Without limiting ; and (ii) instruct the generality Depositary to (A) fix the Record Date as the record date for determining the holders of ADSs to whom the foregoing, Schedule 13E-3 will be mailed/distributed (the Company agrees that its obligations pursuant “Record ADS Holders”) and (B) provide the Schedule 13E-3 (together with the Plan of Merger) to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationall Record ADS Holders.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (TDCX Inc.)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement6.01. PREPARATION OF THE FORM S-4 AND THE PROXY STATEMENT; Stockholders MeetingSTOCKHOLDER MEETINGS.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Proxy Statement and the Company and Parent shall prepare and Parent shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company and Parent shall use all its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filingfiling and keep the Form S-4 effective for so long as necessary to consummate the Merger. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting . Parent shall also take any action required to be taken under any applicable state securities Laws in accordance connection with the DGCL for issuance of shares of Parent Common Stock in the purpose of obtaining the Company Stockholder Approval Merger, and subject to Section 4.3, the Board of Directors of the Company shall recommend furnish all information concerning the Company and the holders of shares of Company Common Stock as may be reasonably requested by Parent in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to the Proxy Statement will made by the Company's stockholders the approval and adoption of this Agreement, the Merger and without providing the other transactions contemplated hereby (the "Company Recommendation")party and its counsel a reasonable opportunity to review and comment thereon. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant If at any time prior to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication Effective Time any information relating to the Company or Parent, or any of any Company Takeover Proposal. Notwithstanding any Change in their respective Affiliates, directors or officers, should be discovered by the Company Recommendationor Parent which should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement, unless otherwise directed so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in writing by Parentlight of the circumstances under which they were made, this Agreement not misleading, the party which discovers such information shall promptly notify the other parties hereto and the Merger an appropriate amendment or supplement describing such information shall be submitted promptly filed with the SEC and, to the extent required by Law, disseminated to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.of
Appears in 1 contract
Sources: Merger Agreement (Mid Atlantic Medical Services Inc)
Additional Agreements. SECTION 5.1 6.01. Preparation of the Form S-4, Proxy Statement; Stockholders Meeting.
(a) As promptly as reasonably practicable following after the date of this Agreement (but in no event more than 20 Business Days after the date of this Agreement), Parent shall prepare, together with the Company, and the Company shall prepare and file cause to be filed with the SEC a registration statement on Form S-4 pursuant to which the offer and sale of shares of Parent Common Stock in the Merger will be registered pursuant to the Securities Act, which will include the proxy statement relating to the Company Shareholder Meeting (together with any amendments or supplements thereto, the “Form S-4, in which the Proxy Statement will be included as a prospectus”). Each of Parent and the Company shall use all its reasonable best efforts (i) to have the Form S-4 declared become effective under the Securities Act as promptly as reasonably practicable after such filingfiling and (ii) to keep the Form S-4 effective as long as necessary to consummate the Transactions. The Company shall use reasonable best efforts to will cause the Proxy Statement proxy statement contained in the Form S-4 to be mailed disseminated to the holders of Company Common Stock as promptly as reasonably practicable after the Form S-4 is declared effectivehas become effective under the Securities Act. Notwithstanding the foregoing, prior to filing the Form S-4, or any amendment or supplement thereto, each of the Company and Parent (i) shall provide the other and/or its counsel an opportunity to review and comment on such document (including the proposed final version of such document), (ii) shall consider in good faith all comments reasonably proposed by the other or its counsel and (iii) shall not file or mail such document or respond to the SEC prior to receiving the approval of the other, which approval shall not be unreasonably withheld, conditioned or delayed.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the The Company or any of its subsidiaries, or with respect to other information supplied by Company and Parent will provide for inclusion in or incorporation by reference into the Form S-4 all reasonably required information relating to the Company, Parent or the Proxy Statement Merger Sub or (ii) any event with respect to Parenttheir respective affiliates, or with respect to information supplied by Parent for inclusion in and the Form S-4 or the Proxy Statement, in either case, which event is required shall include all information reasonably requested by such other party to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and included therein. Parent shall promptly notify the other of the receipt Company and its counsel of any comments or other communications, whether written or oral, that Parent or its counsel may receive from time to time from the SEC or its staff or any other appropriate government official and of any requests by with respect to the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information Form S-4, and shall supply provide the other Company with copies of all written correspondence between the Company or any of Parent and its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government officialSEC, on the other hand, with respect thereto. The Company and Parent shall use their respective its reasonable best efforts to respond as promptly as reasonably practicable to any such comments of from the SEC or its staff with respect to the Form S-4 S-4, and will use its reasonable efforts to incorporate any reasonable comments of the Proxy Statement as promptly as practicableCompany or its counsel prior to such response. The Company shall use its reasonable best efforts to cooperate with Parent in responding to any such comments from the SEC or its staff with respect to the Form S-4. Parent shall advise the Company, promptly after it receives notice thereof, of the time of effectiveness of the Form S-4, the issuance of any stop order relating thereto or the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, and Parent shall cooperate with each other and provide use its reasonable best efforts to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending have any such document.
stop order or suspension lifted, reversed or otherwise terminated. Parent shall also take any other action (dother than qualifying to do business in any jurisdiction in which Parent is not now so qualified) The Company shall, as promptly as practicable after the Form S-4 is declared effective required to be taken under the Securities Act, duly callthe Securities Exchange Act, give notice of, convene any applicable foreign or state securities or “blue sky” Laws and hold the Company Stockholders Meeting rules and regulations thereunder in accordance connection with the DGCL for issuance of Parent Common Stock in the purpose of obtaining the Company Stockholder Approval Merger, and subject to Section 4.3, the Board of Directors of the Company shall recommend to furnish all information concerning the Company's stockholders the approval and adoption of this Agreement, the Merger Company and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality holders of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not capital stock as may be affected by the commencement, public proposal, public disclosure or communication to the Company of reasonably requested in connection with any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationactions.
(ec) The information provided by Parent and the Company specifically for use in the Form S-4 shall coordinate and cooperate with Parent not, with respect to the timing information provided by such person, on the date upon which the proxy statement and prospectus contained in the Form S-4 is distributed to the holders of Company Common Stock, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Company Stockholders Meetingand Parent agrees to promptly (i) correct any information provided by it specifically for use in the Form S-4 if and to the extent that such information shall have become false or misleading in any material respect and (ii) supplement the information provided by it specifically for use in the Form S-4 to include any information that shall become necessary in order to make the statements in the Form S-4, in light of the circumstances under which they were made, not misleading. Parent further agrees to cause the Form S-4 as so corrected or supplemented promptly to be filed with the SEC and each of the Company and Parent agrees to cause the Form S-4 to be disseminated to the holders of Company Common Stock (and will use its reasonable efforts to incorporate any reasonable comments of the other party and/or its counsel prior to such filing and dissemination), in each case as and to the extent required by applicable Laws.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Joint Proxy Statement; Stockholders MeetingMeetings.
(a) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC (and the Company shall cooperate and participate in the preparation of) the Form S-4, in which the Joint Proxy Statement will shall be included as a prospectusprospectus and in which a resale prospectus (the "Resale Prospectus") shall be included for the purpose of permitting the Parent Common Stock issued to those affiliates of the Company identified in Section 5.10 of the Company Disclosure Schedule to be resold by such affiliates as provided in the last sentence of this Section 5.1(a). Each of Parent and the Company shall use all their reasonable best efforts to have the Form S-4 and the Resale Prospectus declared effective under the Securities Act and the Joint Proxy Statement "cleared" by the SEC's staff for mailing in connection with the Company Stockholder Meeting and the Parent Stockholder Meeting as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as As promptly as practicable after the Form S-4 is declared effective, each of Parent and the Company shall cause the Joint Proxy Statement to be mailed to their respective stockholders. Parent shall use its reasonable best efforts to maintain the Resale Prospectus in effect for purposes of the Securities Act until the earlier of (i) such time as those affiliates identified on Schedule 5.10 have resold their Parent Common Stock covered by such Resale Prospectus or (ii) 365 days after the effective date of the Resale Prospectus.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Joint Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Joint Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplementsupplement to, to the Form S-4 or the Joint Proxy Statement, such event promptly shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of CompanyCompany and Parent.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information information, and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Joint Proxy Statement as promptly as practicablepracticable after the receipt thereof. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Joint Proxy Statement, and shall provide promptly to the other party any all information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL DGCL, its certificate of incorporation and by-laws, as applicable, for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.34.3(b), the Board of Directors of the Company shall recommend to the Company's stockholders that they affirmatively vote for the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby Agreement (the "Company Recommendation"). The Company shall solicit from the holders of Company Common Stock proxies in favor of adoption of this Agreement and shall take all other lawful action necessary and desirable to obtain the Company Stockholder Approval. Once the Company Stockholders Meeting has been duly called and noticed, the Company shall not postpone or adjourn (other than for the absence of a quorum, and then only to the nearest possible future date) the Company Stockholders Meeting without Parent's written consent. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the making, commencement, public proposalannouncement, public disclosure disclosure, submission, receipt or communication to the Company or its stockholders or professional advisors or representatives of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed Recommendation or anything in writing by Parentthis Agreement to the contrary, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving obtaining the Agreement and the Merger Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) . The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting and the Parent Stockholder Meeting, and shall take all steps necessary to ensure that they are convened and held on the same date or as nearly proximate to one another as reasonably practicable. 57
(e) Parent shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Parent Stockholders Meeting in accordance with the FBCA and its articles of incorporation and by-laws, as applicable, for the purpose of obtaining the Parent Stockholder Approval, and the Board of Directors of Parent shall recommend to its shareholders that they affirmatively vote to approve the issuance of Parent Common Stock pursuant to the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation The Company agrees that, upon the occurrence and during the continuance of a Default hereunder, it will, at any time and from time to time, upon the written request of the Form S-4Trustee, Proxy Statement; Stockholders Meeting.
(a) As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its commercially reasonable best efforts to take or to cause the Proxy Statement Intercompany Note Makers and the issuers of any other securities distributed in respect of the Intercompany Notes (collectively with the Intercompany Notes, the "Pledged Securities") to take such action and prepare, distribute or file such documents, as are required or advisable in the reasonable opinion of counsel for the Trustee to permit the public sale of such Pledged Securities. The Company further agrees to indemnify, defend and hold harmless the Trustee, each Holder, any underwriter and their respective officers, directors, affiliates and controlling persons from and against all loss, liability, expenses, costs of counsel (including reasonable fees and expenses of legal counsel to the Trustee), and claims (including the costs of investigation) that they may incur insofar as such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact required to be mailed stated therein or necessary to holders of Company Common Stock make the statements in any thereof not misleading, except insofar as promptly as practicable after the Form S-4 is declared effective.
(b) If at same may have been caused by any time prior to the Effective Time there shall occur (i) any event with respect untrue statement or omission based upon information furnished in writing to the Company or the issuer of such Pledged Securities by the Trustee or any of Holder expressly for use therein. The Company further agrees, upon such written request referred to above, to use its subsidiariesbest efforts to qualify, file or register, or with respect cause the issuer of such Pledged Securities to other information supplied by Company for inclusion in the Form S-4 qualify, file or the Proxy Statement or (ii) any event with respect to Parentregister, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with Pledged Securities under the SEC in connection with the Merger Blue Sky or other securities laws of such states as may be required by law and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representativeskeep effective, or Parent cause to be kept effective, all such qualifications, filings or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect theretoregistrations. The Company will bear all costs and Parent shall use their respective reasonable best efforts to respond to any comments expenses of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicablecarrying out its obligations under this Section 12.13. The Company acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section 12.13 and Parent shall cooperate with each other and provide to each other all information necessary that such failure would not be adequately 115 compensable in order to prepare the Form S-4 and the Proxy Statementdamages, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company therefore agrees that its obligations pursuant to the first sentence of agreements contained in this Section 5.1(d) shall not 12.13 may be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationspecially enforced.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Indenture (Ucar International Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Section 7.01 Proxy Statement; Stockholders MeetingStatement(a) .
(a) As The Company shall, with the assistance of Parent, prepare and furnish to the SEC, as promptly as reasonably practicable following after the date of this Agreement (and in any event within ten (20) Business Days), a Form 6-K with a proxy statement (such proxy statement, as amended and/or supplemented, being referred to herein as the “Proxy Statement”). Parent, Amalgamation Sub and the Company will cooperate with each other in the preparation of such Form 6-K and Proxy Statement. Unless the Company Board has made a Change in the Company Recommendation in accordance with the provisions of this Agreement, the Company Recommendation shall be included in the Proxy Statement.
(b) Subject to applicable Law, and anything in this Agreement to the contrary notwithstanding, prior to furnishing the Form 6-K with the Proxy Statement (or any amendment or supplement thereto) to the SEC, or any dissemination of the Proxy Statement to the Shareholders, the Company shall provide Parent and its counsel with a reasonable opportunity to review and to comment on such documents, and the Company shall prepare and file with consider in good faith the SEC the Form S-4, in which the Proxy Statement will be included as a prospectuscomments reasonably proposed by Parent. Each of Parent and Amalgamation Sub will promptly furnish to the Company the information relating to it to be included in the Proxy Statement as reasonably requested by the Company, which shall use all reasonable efforts not contain any untrue statement of a material fact or omit to have state any material fact required to be stated therein or necessary in order to make the Form S-4 declared effective statements therein, in light of the circumstances under which they are made, not false or misleading; provided, however, that Parent and Amalgamation Sub make no representation or warranty with respect to any statement made in the Securities Act as promptly as practicable after such filingProxy Statement based on information supplied by the Company or any of its Representatives which is contained or incorporated by reference in the Proxy Statement. The Company shall use reasonable best efforts promptly notify Parent and Amalgamation Sub upon the receipt of any correspondences from any Governmental Authority with respect to, or any request from any Governmental Authority for amendments or supplements, to the Proxy Statement and shall provide Parent with copies of all correspondences between it and its Representatives, on the one hand, and such Governmental Authority, on the other hand, relating to the Proxy Statement. Parent shall promptly provide the Company with copies of all correspondences between it and its Representatives, on the one hand, and such Governmental Authority, on the other hand, relating to the Proxy Statement. The Company shall cause the Proxy Statement to be mailed to holders of Company Common Stock Shares as of the record date established for the Shareholders’ Meeting as promptly as reasonably practicable (but in any event no more than five (5) Business Days) after the date on which the Company furnishes to and/or cleared with the SEC the Form S-4 is declared effective6-K with the Proxy Statement.
(bc) If at any time prior to the Effective Time there shall occur (i) Shareholders’ Meeting, any event with respect information relating to the Company Company, Parent, Amalgamation Sub or any of its subsidiariestheir respective Affiliates, officers or with respect directors is discovered by the Company, Amalgamation Sub or Parent which should be set forth in an amendment or supplement to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or so that the Proxy Statement, in either case, which event is Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be described stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, as to the extent required by lawapplicable Laws, disseminated to the stockholders of CompanyShareholders.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Amalgamation Agreement
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy StatementSection 5.1. PREPARATION OF THE FORM S-4 AND THE PROXY STATEMENT; Stockholders Meeting.STOCKHOLDERS MEETINGS
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company and Parent shall prepare and file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each Subject to Section 4.2, each of Parent and the Company and Parent shall use all its reasonable best efforts to (i) have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to filing and (ii) cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the Company's stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and upon the exercise of Adjusted Options, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action. The Form S-4 and the Proxy Statement shall comply as to form in all material respects with the applicable provisions of the Securities Act and the Exchange Act. The Company and Parent shall, as promptly as practicable after receipt thereof, provide the other party copies of any written comments and advise the other party of any oral comments, with respect to the Proxy Statement received from the SEC. Parent shall provide the Company with a reasonable opportunity to review and comment on any amendment or supplement to the Form S-4 prior to filing such with the SEC, and shall provide the Company with a copy of all such filings made with the SEC. Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Proxy Statement or the Form S-4 shall be made without the approval of both parties, which approval shall not be unreasonably withheld or delayed; PROVIDED, that with respect to documents filed by a party which are incorporated by reference in the Form S-4 or Proxy Statement, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations or the transactions contemplated by this Agreement. No filing of, or amendment or supplement to, the Form S-4 shall be made by Parent, or to the Proxy Statement shall be made by the Company, without providing the other party the opportunity to review and comment thereon. Parent shall advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. Each party shall advise the other party, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, should be discovered by the Company or Parent which should be set 37 forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and 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 stockholders of the Company and Parent.
(b) The Company shall, as soon as reasonably practicable, consistent with the process of clearing the Proxy Statement with the SEC and having the SEC declare the Form S-4 effective, all as provided in Section 5.1(a), establish a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (the Company Stockholders Meeting in accordance with the DGCL "COMPANY STOCKHOLDERS MEETING") for the purpose of obtaining the Company Stockholder Approval and subject shall take all lawful action to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and solicit adoption of this AgreementAgreement by the required Company Stockholder Approval. Unless the Company has terminated this Agreement pursuant to Section 7.1(f) hereof, the Merger and the other transactions contemplated hereby Company shall, through its Board of Directors, recommend to its stockholders adoption of this Agreement (the "Company RecommendationCOMPANY RECOMMENDATION"), and except as expressly permitted by this Agreement, shall not withdraw, amend or modify in a manner adverse to Parent its recommendation. The Company shall ensure that the Company Stockholders Meeting is called, noticed, convened, held and conducted, and that all proxies solicited in connection with the Company Stockholders Meeting are solicited, in compliance with all applicable Legal Provisions. Without limiting the generality of the foregoing, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section 5.1(b), shall not be affected by the withdrawal, amendment or modification of the Company Recommendation and (ii) the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d5.1(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (TMP Worldwide Inc)
Additional Agreements. SECTION 5.1 5.01. Preparation of the Form S-4, Proxy Statement; Stockholders Meeting.Meeting --------------------------------------------------------
(a) As promptly as reasonably practicable following the date of - this Agreement, Parent and the Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent in preliminary form and the Company shall use all its commercially reasonable efforts to have the Form S-4 declared effective under the Securities Act respond as promptly as practicable after such filing. The Company shall use reasonable best efforts to any comments of the SEC with respect thereto, to prepare and file with the SEC the definitive Proxy Statement and to cause the definitive Proxy Statement to be mailed to holders of Company Common Stock the Company's stockholders as promptly as practicable after following the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the date of this Agreement. The Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of Parent upon the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by request from the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information Proxy Statement and shall supply the other provide Parent with copies of all correspondence between the Company or any of and its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or and its staff or any other appropriate government officialstaff, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts promptly provide any information or responses to respond comments or other assistance reasonably requested in connection with the foregoing. Prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent an opportunity to review and comment on such document or response, (ii) shall give reasonable consideration to all comments proposed by Parent and (iii) shall not file or mail any such document or submit any response to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and SEC to which Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such documentreasonably objects.
(db) The Company shall, as promptly as practicable after following the Form S-4 is declared effective under date of this Agreement, establish a record date (which will be as promptly as reasonably practicable following the Securities Actdate of this Agreement) for, duly call, give notice of, convene and hold a meeting of its stockholders (the Company "Stockholders Meeting in accordance with the DGCL Meeting") for the purpose of obtaining the Company --------------------- Stockholder Approval and subject Approval. Except as expressly permitted pursuant to Section 4.34.02(b), the Company shall, through its Board of Directors of the Company shall Directors, recommend to the Company's its stockholders the approval and adoption of that they adopt this Agreement, and shall include such recommendation in the Merger and the other transactions contemplated hereby (the "Company Recommendation")Proxy Statement. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d5.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy StatementDSNC PROXY STATEMENT/PROSPECTUS; Stockholders MeetingREGISTRATION STATEMENT; TEK PROXY STATEMENT; OTHER FILINGS; BOARD RECOMMENDATIONS.
(a) As promptly as practicable following after the date execution of this Agreement, Parent DSNC and Tek will prepare, and file with the SEC, the DSNC Proxy Statement and the Company shall Tek Proxy Statement, and Tek will prepare and file with the SEC the Form S-4, Registration Statement in which the DSNC Proxy Statement will be included as a prospectus. Each of Parent DSNC and Tek will respond to any comments of the Company shall SEC, will use all its respective reasonable best efforts to have the Form S-4 Registration Statement declared effective under the Securities Act and the DSNC Proxy Statement and the Tek Proxy Statement to be cleared by the SEC as promptly as practicable after such filing. The Company shall use reasonable best efforts filings and, to the extent that presenting this Agreement and the Merger to DSNC's shareholders and Tek's shareholders for their respective approval and adoption would not violate applicable law, DSNC will cause the DSNC Proxy Statement to be mailed to holders of Company Common Stock as the DSNC shareholders, and Tek will cause the Tek Proxy Statement to be mailed to the Tek shareholders, at the earliest practicable time after the Registration Statement is declared effective by the SEC. As promptly as practicable after the Form S-4 is declared effective.
(b) If at date of this Agreement, each of DSNC and Tek will prepare and file any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is filings required to be described in an amendment offiled by it under the Exchange Act, the Securities Act or a supplementany other Federal, foreign or Blue Sky or related laws relating to the Form S-4 or Merger and the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with transactions contemplated by this Agreement (the SEC and, as required by law, disseminated to the stockholders of Company.
(c) "Other Filings"). Each of the Company DSNC and Parent shall promptly Tek will notify the other of promptly upon the receipt of any comments from the SEC or its staff or any other appropriate government official officials and of any requests request by the SEC or its staff or any other appropriate government official officials for amendments or supplements to the Registration Statement, the DSNC Proxy Statement, the Tek Proxy Statement, or any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby Other Filing or for additional information and shall will supply the other with copies of all correspondence between the Company such party or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC SEC, or its staff or any other appropriate government officialofficials, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and Registration Statement, the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the DSNC Proxy Statement, the Tek Proxy Statement, the Merger or any Other Filing. Each of DSNC and shall provide promptly Tek will cause all documents that it is responsible for filing with the SEC or other regulatory authorities under this Section 5.1(a) to comply in all material respects with all applicable requirements of law and the rules and regulations promulgated thereunder. Whenever DSNC or Tek obtains knowledge of the occurrence of any event which is required to be set forth in an amendment or supplement to the DSNC Proxy Statement, the Tek Proxy Statement, the Registration Statement or any Other Filing, DSNC or Tek, as the case may be, will promptly inform the other party of such occurrence and cooperate in filing with the SEC or its staff or any information other government officials, and/or mailing to shareholders of DSNC or Tek, such party may obtain that could necessitate amending any such documentamendment or supplement.
(db) The Company shallSubject to the provisions of Section 5.4(b) the DSNC Proxy Statement will include the recommendation of the Board of Directors of DSNC, as promptly as practicable after and the Form S-4 is declared effective under Tek Proxy Statement will include the Securities Actrecommendation of the Board of Directors of Tek, duly call, give notice of, convene in favor of adoption and hold approval of this Agreement and approval of the Company Stockholders Meeting Merger (except that notwithstanding anything to the contrary contained in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3this Agreement, the Board of Directors of DSNC or the Company shall recommend Board of Directors of Tek may withdraw, modify or refrain from making such recommendation to the Companyextent that the Board determines, in good faith, after consultation with outside legal counsel, that compliance with the Board's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation"fiduciary duties would require it to do so). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.1 6.01. Preparation of the Form S-4, S-4 and the Proxy Statement; Stockholders Meeting---------------------------------------------------- Shareholders Meetings; Adoption by Sole Shareholder.
(a) As promptly as practicable following the date of this AgreementThe Company, Parent ---------------------------------------------------- and Newco shall prepare and file with the SEC the Proxy Statement in preliminary form and Parent, the Company and Newco shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company, Parent and the Company Newco shall use all its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company Each of the Company, Parent and Newco shall use its reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Newco shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Newco Common Stock in the Merger and under the Company Stock Plans and the Parent Stock Plans, and the Company and Parent shall furnish all information concerning the Company or Parent, as applicable, and the holders of the Company Common Stock or Parent Common Stock and rights to acquire Company Common Stock or Parent Common Stock pursuant to the Company Stock Plans or the Parent Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such party or any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger.
(b) If prior to the Merger Effective Time any event occurs with respect to the Company or any Company Subsidiary or any change occurs with respect to information supplied by or on behalf of the Company for inclusion in the Proxy Statement or the Form S-4 which, in each case, is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Form S-4, the Company shall promptly notify Parent of such event, and the Company shall cooperate with Parent and Newco in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement and Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to the Company's shareholders and to Parent's shareholders.
(c) If prior to the Merger Effective Time any event occurs with respect to Parent or any Parent Subsidiary or any change occurs with respect to information supplied by or on behalf of Parent for inclusion in the Proxy Statement or the Form S-4 which, in each case, is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Form S-4, Parent shall promptly notify the Company of such event, and Parent shall cooperate with Company in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement and the Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to the Company's shareholders and to Parent's shareholders.
(d) The Company shall, as soon as practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its shareholders (the "Company Stockholders Meeting in accordance with the DGCL Shareholders Meeting") for the purpose of obtaining seeking the ---------------------------- Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Shareholder Approval. The Company shall recommend use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company's stockholders shareholders as promptly as practicable after the approval and adoption of this AgreementForm S-4 is declared effective under the Securities Act. Subject to Section 5.02(b), the Merger and Company shall, through its Board of Directors, recommend to its shareholders that they give the other transactions contemplated hereby (the "Company Recommendation")Shareholder Approval. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence two sentences of this Section 5.1(d6.01(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationCompeting Transaction.
(e) Parent shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the "Parent Shareholders Meeting") for the purpose of seeking the --------------------------- Parent Shareholder Approval. The Parent shall use its reasonable best efforts to cause the Proxy Statement to be mailed to the Parent's shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Subject to Section 5.03(b), Parent shall, through its Board of Directors, recommend to its shareholders that they give the Parent Shareholder Approval. Without limiting the generality of the foregoing, Parent agrees that its obligations pursuant to the first two sentences of this Section 6.01(e) shall not be affected by the commencement, public proposal, public disclosure or communication to Parent of any Parent Competing Transaction.
(f) The Company shall coordinate use its reasonable best efforts to cause to be delivered to Parent a letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the Company's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and cooperate addressed to Parent, in form and substance reasonably satisfactory to Parent and customary in scope and substance for letters delivered by independent public accountants in connection with Parent with respect registration statements similar to the timing of Form S-4.
(g) Parent shall use its reasonable best efforts to cause to be delivered to the Company Stockholders Meetinga letter of PricewaterhouseCoopers LLP, Parent's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to the Company, in form and substance reasonably satisfactory to the Company and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Form S-4.
(h) Parent, as sole shareholder of Newco, shall adopt this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Exchange and Merger (Commonwealth Edison Co)
Additional Agreements. SECTION 5.1 Section 5.01. Preparation of the Form S-4, Proxy StatementStatement and Schedule 13E-3; Stockholders MeetingStockholders’ Meeting .
(a) As promptly soon as reasonably practicable following the date of this Agreement, the Company and Parent shall prepare, and the Company shall prepare and file with the SEC the Form S-4SEC, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filingStatement. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders the stockholders of the Company Common Stock as promptly as practicable after practicable. Parent shall furnish to the Form S-4 is declared effective.
(b) Company all information as may be reasonably requested by the Company in connection with the preparation, filing and distribution of the Proxy Statement. No filing of, or amendment or supplement to, the Proxy Statement will be made by the Company without providing Parent a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time there shall occur (i) any event with respect information relating to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect any of their respective Affiliates, directors or officers, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in either caselight of the circumstances under which they are made, not misleading, the party which event is required to be described in discovers such information shall promptly notify the other party hereto and an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, as to the extent required by lawLaw, disseminated to the stockholders of the Company.
(c) Each of the Company and Parent . The parties shall notify each other promptly notify the other of the receipt of any comments from the SEC or its the staff or any other appropriate government official of the SEC and of any requests request by the SEC or its the staff or any other appropriate government official of the SEC for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby Proxy Statement or for additional information and shall supply the each other with copies of all correspondence between the Company it or any of its representatives, or Parent or any of its representatives, as the case may beRepresentatives, on the one hand, and the SEC or its the staff or any other appropriate government officialof the SEC, on the other hand, with respect theretoto the Proxy Statement or the Merger.
(b) Concurrently with the filing of the Proxy Statement with the SEC, Parent and its Affiliates shall prepare and file with the SEC, together with the Company, the Schedule 13E-3. The Parent and the Company shall cause the Schedule 13E-3 to comply with the rules and Parent shall use their respective reasonable best efforts to regulations promulgated by the SEC and respond promptly to any comments of the SEC or its staff regarding the Schedule 13E-3. Each party agrees to provide the other party and its counsel with respect copies of any comments that such party or its counsel may receive from the staff of the SEC regarding the Schedule 13E-3 promptly after receipt thereof. The Company shall promptly furnish to Parent all information concerning the Form S-4 Company and its executive officers and directors as may reasonably be requested in connection with the Proxy Statement as promptly as practicablepreparation of the Schedule 13E-3. The Company and Parent its counsel shall cooperate be given an opportunity to review and comment on the Schedule 13E-3 and each supplement, amendment or response to comments with each other and provide respect thereto prior to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly filing with or delivering to the other party any information such party may obtain that could necessitate amending any such documentSEC.
(dc) The Company shallshall use its reasonable best efforts, as promptly soon as practicable after following the Form S-4 is declared effective under the Securities Actdate of this Agreement, to establish a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (the Company Stockholders Meeting in accordance with the DGCL “Stockholders’ Meeting”) for the purpose of obtaining the Company Stockholder Approval Approvals; provided that such date may be extended to the extent reasonably necessary to permit the Company to file and subject distribute any material amendment to the Proxy Statement as is required by applicable law. Subject to Section 4.34.02, the Company shall, through its Board of Directors of the Company shall Directors, recommend to the Company's its stockholders the approval and adoption of this Agreement, Agreement and the Merger and shall include the other transactions contemplated hereby Company Board Recommendation in the Proxy Statement. A Change in Recommendation permitted by Sections 4.02(e), (f) or (g) will not constitute a breach by the "Company Recommendation")of this Agreement. Without limiting the generality of the foregoing, but subject to the Company agrees that its terms of this Agreement, the Company’s obligations pursuant to the first sentence of this Section 5.1(d5.01(c) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal (whether or not a Superior Proposal). Notwithstanding In addition, notwithstanding any Change in the Company Recommendation, unless otherwise directed this Agreement is terminated pursuant to, and in writing by Parentaccordance with, Section 7.01, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Stockholders’ Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationadopting this Agreement.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION Section 5.1 Preparation of the Form S-4, S-4 Proxy Statement; Stockholders MeetingShareholders Meetings.
(a) Form S-4; Proxy Statement. As promptly soon as practicable following the date of this Agreement, Parent and the Company and Parent shall prepare and file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company and Parent shall use all reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use all reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company 's shareholders and Parent shall use their respective all reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and cause the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with to be mailed to Parent's shareholders, in each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shallcase, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene . Parent shall also take any action required to be taken under any applicable foreign and hold the Company Stockholders Meeting state securities laws in accordance connection with the DGCL for the purpose issuance of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, Parent Common Stock in the Merger and the other transactions contemplated hereby (Company shall furnish all information concerning the "Company Recommendation"). Without limiting and the generality holders of the foregoingCompany Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to, the Proxy Statement will be made by the Company agrees that or Parent, in each case, without providing the other party and its obligations pursuant respective counsel the reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication Effective Time any information relating to the Company or Parent, or any of any Company Takeover Proposal. Notwithstanding any Change in their respective affiliates, officers or directors, should be discovered by the Company Recommendation, unless otherwise directed or Parent which should be set forth in writing by Parent, this Agreement and the Merger shall be submitted an amendment or supplement to the stockholders Form S-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the Company at circumstances under which they were made, not misleading, the Company Stockholders Meeting for party that discovers such information shall promptly notify the purpose of approving other parties hereto and an appropriate amendment or supplement describing such information must be promptly filed with the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect SEC and, to the timing extent required by Law, disseminated to the shareholders of the Company Stockholders MeetingCompany.
Appears in 1 contract
Sources: Merger Agreement (Smucker J M Co)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Section 7.01 Proxy Statement; Stockholders Meeting.
(a) As , Information Statement, Other Filings and Form S-4As promptly as reasonably practicable following the date of this Agreement, the Company Parties shall prepare and, once reasonably acceptable to Parent and the Company shall prepare and Parties, file with the SEC the Form S-4preliminary Proxy Statement and each of the Company Parties and Buyer Parties shall, or shall cause their respective Affiliates to, prepare and, after consultation with each other, file with the SEC all Other Filings that are required to be filed by such party in which connection with the transactions contemplated hereby. Each of the Company Parties and Buyer Parties shall furnish all information concerning itself and its affiliates that is required to be included in the Proxy Statement will be and the Information Statement or, to the extent applicable, the Other Filings, or that is customarily included as a prospectusin proxy statements and information statements prepared in connection with transactions of the type contemplated by this Agreement. Each of Parent the Company Parties and Buyer Parties shall use its commercially reasonable efforts, after consultation with the other, to respond as promptly as practicable to any comments of the SEC with respect to the Proxy Statement or the Other Filings, and the Company shall use all its commercially reasonable efforts to have cause (i) the Form S-4 declared effective under definitive Proxy Statement to be filed with, and cleared by, the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts SEC, (ii) the Information Statement to cause be filed with the SEC and (iii) the definitive Proxy Statement and the Information Statement to be mailed to holders of the Company Common Stock Shareholders and the Operating Trust Unitholders, respectively, as promptly as reasonably practicable after following clearance from the Form S-4 is declared effective.
(b) If at any time prior to SEC of the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the definitive Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the . The Company and Parent shall promptly notify the other of Parent upon the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by request from the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with Proxy Statement or the SEC in connection with the Merger and other transactions contemplated hereby or for additional information Other Filings and shall supply the other promptly provide Parent with copies of all correspondence between the Company or any of and its representatives, or Parent or any of its representatives, as the case may beRepresentatives, on the one hand, and the SEC or and its staff or any other appropriate government officialstaff, on the other hand, with respect theretorelating to the Proxy Statement or the Other Filings. The If at any time prior to the Company and Parent shall use Shareholders’ Meeting, any information relating to the Company Parties or the Buyer Parties or any of their respective reasonable best efforts affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to respond the Proxy Statement, the Information Statement or the Other Filings, so that the Proxy Statement, the Information Statement or the Other Filings shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the shareholders of the Company. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement, the Information Statement or filing the Other Filings (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide Parent a reasonable opportunity to review and comment on such document or response and will include in such documents or responses all comments reasonably proposed by Parent, and to the Form S-4 extent practicable, the Company will provide Parent with the opportunity to participate in any substantive calls between the Company, or any of its Representatives, and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and SEC concerning the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as . As promptly as reasonably practicable after following the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption date of this Agreement, the Company Parties shall prepare and, once reasonably acceptable to Parent and the Company Parties, file with the SEC the Form S-4 in connection with the registration under the Securities Act of the Series O Preferred Units to be issued in connection with the Operating Trust Merger in accordance with Section 3.02(a), which Form S-4 shall include one or more prospectuses (such offers and proxy statements, together with any amendments or supplements thereto, the “S-4 Related Documents”). The Form S-4 shall also contain the information required for the Information Statement. The S-4 Related Documents shall set forth the procedures, reasonably acceptable to the Company and the Operating Trust, for holders of the Operating Trust Class A-1 Common Units to make an Election, including the deadline for making an Election and the procedures (if any) for revoking an Election. The Company Parties and the Buyer Parties shall cause the Form S-4 and S-4 Related Documents to comply as to form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the S-4 or S-4 Related Documents and shall promptly provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the S-4 or S-4 Related Documents. If at any time prior to the completion of the Election, any information relating to the Company Parties or the Buyer Parties or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the S-4 or S-4 Related Documents, so that the S-4 or S-4 Related Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the Operating Trust Unitholders. Notwithstanding anything to the contrary stated above, prior to filing the S-4 or S-4 Related Documents (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide Parent a reasonable opportunity to review and comment on such document or response and will include in such documents or responses all comments reasonably proposed by Parent, and to the extent practicable, the Company will provide Parent with the opportunity to participate in any substantive calls between the Company, or any of its Representatives, and the SEC concerning the S-4. Each of the Company Parties shall use its commercially reasonable efforts, and the Buyer Parties shall cooperate with the Buyer Parties, to have the Form S-4 declared effective by the SEC as promptly as practicable (including clearing the S-4 Related Documents with the SEC) and kept effective as long as is necessary to complete the Operating Trust Merger and the other transactions contemplated hereby Election. The Company Parties shall promptly notify Parent, if applicable, of (i) the "Company Recommendation"). Without limiting time when the generality of Form S-4 has become effective, (ii) the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company filing of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.supplement or amendment thereto,
Appears in 1 contract
Sources: Merger Agreement
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement; Stockholders MeetingPREPARATION OF THE PROXY STATEMENT AND SCHEDULE 13E-3.
(a) As promptly as practicable following the date of this Agreement, Parent and the The Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts prepare and file a proxy or information statement relating to the Stockholders' Meeting (together with all amendments, supplements and exhibits thereto, the "Proxy Statement") with the SEC and will diligently respond to any comments of the SEC or its staff and cause the Proxy Statement to be mailed to holders the Company's stockholders at the earliest practical time. The Company shall use its best efforts to obtain from the Financial Advisor an opinion (that shall not at the time of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any mailing of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(cthe Company be subject to adverse comment by the SEC) Each as to the fairness of the transactions contemplated hereby and to cause the same to be reproduced and furnished to its stockholders in connection with the Proxy Statement. The Company and Parent shall will notify Levy Acquisition Co. promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests request by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby Proxy Statement or for additional information and shall will supply the other Levy Acquisition Co. with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government officialstaff, on the other hand, with respect theretoto the Proxy Statement or the Merger. If at any time prior to the Stockholders' Meeting there shall occur any event that the Company determines must or should be set forth in an amendment or supplement to the Proxy Statement, the Company will promptly prepare and mail to its stockholders such an amendment or supplement. The Company will not mail any Proxy Statement, or any amendment or supplement thereto, to which Levy Acquisition Co. reasonably objects. The Company hereby consents to the inclusion in the Proxy Statement of the recommendation of the Board described in Section 5.2, subject to any modification, amendment or withdrawal thereof, and Parent represents that the Independent Advisor has, subject to the terms of its engagement letter with the Company, consented to the inclusion of references to its opinion in the Proxy Statement.
(b) The Company and Levy Acquisition Co. shall use their respective reasonable best efforts together prepare and file a Transaction Statement on Schedule 13E-3 (together with all amendments and exhibits thereto, the "Schedule 13E-3") under the Exchange Act. Levy Acquisition Co. shall furnish all information concerning it, its affiliates and the holders of its capital stock required to be included in the Schedule 13E-3 and, after consultation with each other, shall respond promptly to any comments of made by the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicableSchedule 13E-3. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors As part of the Company disclosures required to be included in the Schedule 13E-3 with respect to Levy Acquisition Co., Levy Acquisition Co. shall recommend to the Company's stockholders the approval and adoption of this Agreement, state that it believes the Merger and the other transactions contemplated hereby (the "Company Recommendation"). Without limiting the generality Consideration is fair to all of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at other than the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligationLevy Stockholders.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 1 contract
Sources: Merger Agreement (Oriole Homes Corp)
Additional Agreements. SECTION 5.1 Section 5.01 Preparation of the Form S-4, S-4 and the Company Proxy Statement; Stockholders Company Stockholders' Meeting.
(a) As promptly soon as practicable following the date of this Agreement, Parent and the Company shall jointly prepare and file with the SEC a document or documents that will constitute the Company Proxy Statement and the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, including, in the case of the Company, providing all information with respect to the Company to be included in the Form S-4. The Company shall will use all reasonable best efforts to cause the Form S-4 and Company Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so describedCompany's stockholders, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements will use all reasonable efforts to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the obtain Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company Stockholder Approval and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with Stockholder Approval, respectively, in each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and the Company shall furnish all information concerning the Company and the holders of capital stock of the Company as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form S-4 or the Company Proxy Statement will be made by either Parent or the Company, without providing the other a reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction. Each of Parent and the Company shall promptly inform the other of any request by the SEC for amendments or supplements to the Form S-4 or the Company Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information and will, as promptly as practicable, provide to the Company or Parent, as the case may be, copies of all correspondence and filings with the SEC with respect to the Form S-4 or the Company Proxy Statement, as applicable. If at any time prior to the Effective Time any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, should be discovered by Parent or the Company which should be set forth in an amendment or supplement to any of the Form S-4 or the Company Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and 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 stockholders of the Company. No amendment or supplement to the information supplied by the Company for inclusion in the Form S-4 shall be made without the approval of the Company, which approval shall not be unreasonably withheld or delayed. For purposes of Sections 5.01, 3.01(d) and 3.02(f), information concerning or related to the Company, its Subsidiaries or their respective Affiliates will be deemed to have been provided by the Company and information concerning or related to Parent, its Subsidiaries or their respective Affiliates will be deemed to have been provided by Parent.
(b) The Company shall, as soon as practicable following the date of this Agreement, establish a record date (which shall be as soon as practicable following the date of this Agreement) for, duly call, give notice of, convene and hold the Company Stockholders Stockholder Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3shall, the through its Board of Directors of the Company shall Directors, recommend to the Company's its stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "Company Recommendation")hereby. Without limiting the generality of the foregoingforegoing but subject to its rights to terminate this Agreement pursuant to Sections 4.02(b) and 7.01, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d5.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding .
(c) Parent shall, as soon as practicable following the date of this Agreement, take all action necessary in accordance with the DGCL and its Certificate of Incorporation and Bylaws and take all other action necessary to obtain any Change in necessary Parent Stockholder Approval and shall, through its Board of Directors, recommend to its stockholders the Company Recommendation, unless otherwise directed in writing by Parent, approval and adoption of this Agreement and the Merger shall be submitted transactions contemplated hereby. Without limiting the generality of the foregoing but subject to its rights to terminate this Agreement pursuant to Section 7.01, Parent agrees that its obligations pursuant to the stockholders first sentence of this Section 5.01(c) shall not be affected by the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed commencement, public proposal, public disclosure or communication to relieve the Company of such obligationany Takeover Proposal.
(e) The Section 5.02 Letters of the Company's Accountants. If requested, the Company shall coordinate use reasonable efforts to cause to be delivered to Parent two letters from the Company's independent accountants, one dated a date within two Business Days before the date on which the Form S-4 shall become effective and cooperate one dated a date within two Business Days before the Closing Date, each addressed to Parent, in form and substance reasonably satisfactory to Parent and customary in scope and substance for comfort letters delivered by independent public accountants in connection with Parent with respect registration statements similar to the timing of the Company Stockholders MeetingForm S-4.
Appears in 1 contract
Sources: Merger Agreement (Allied Riser Communications Corp)