Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer. (b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff. (c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession. (d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 3 contracts
Sources: Merger Agreement (Ivillage Inc), Merger Agreement (Ivillage Inc), Merger Agreement (Promotions Com Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that that:
(i) the Company Board of Directors, at a meeting duly called and held on February 11December 10, 20021998, at which a majority of the Directors were present: duly and unanimously (i) determined that approved and adopted this Agreement, the OfferOption Agreement, the Merger Stockholders Agreement and the other transactions contemplated herebyhereby and thereby, taken togetherincluding the Offer and the Merger, are at a price and on terms fair to, advisable and in resolved to recommend that the best interests stockholders of the Company accept the Offer, tender their Shares pursuant to the Offer and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, ; and (B) recommend acceptance and approval by the Company Stockholders of determined that this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment are fair to and in the best interests of the holders of Shares; provided, however, that prior to the Rights; and purchase by the Purchaser of Shares pursuant to the Offer, the Company may modify, withdraw or change such recommendation to the extent that the Board of Directors determines, after consultation with outside legal counsel to the Company, that the failure to so withdraw, modify or change such recommendation would likely breach the fiduciary duties of the Board of Directors under applicable laws;
(ivii) took all actions necessary and advisable with respect to render inapplicable the Rights Agreement, the Company has duly amended the Rights Agreement to each provide that (A) neither this Agreement nor any of the transactions contemplated hereby, including the Offer and the Merger, will result in the occurrence of a "Distribution Date" (as such term is defined in the Rights Agreement) or otherwise cause the Rights to become exercisable by the Transaction Documents holders thereof, and (B) the provisions Rights shall automatically on and as of any Antitakeover Laws. Subject to Section 6.4(c)the Effective Time (as defined below) be void and of no further force or effect; and
(iii) ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor Inc. ("▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇") has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, opinion that as of the date of the Fairness Opinion, hereof the consideration to be received by the stockholders of the Company Stockholders pursuant to this Agreement, each of the Offer and the Merger is fair to the stockholders of the Company from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Advisor ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), permit the inclusion of the Fairness Opinion such fairness opinion (or a reference thereto) in the Offer Documents, Documents and in the Schedule 14D-9 (as defined referred to below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant hereby consents to the Offerinclusion in the Offer Documents of the recommendations of the Board of Directors described in this Section 1.2(a).
(b) The Company hereby agrees to shall file with the SEC, concurrently with no later than the filing by Parent and Merger Sub fifth business day following the public announcement of the Schedule TO with respect to the Offerthis Agreement, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendmentsamendments or supplements thereto, supplements and including the exhibits thereto, the "Schedule 14D-9") that ). The Schedule 14D-9 will (i) comply in all material respects with the provisions of all applicable federal law, including Federal securities law and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, 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 were made, not misleading, except that no representation is made by the Company with respect to information furnished by the Purchaser, in writing, expressly for inclusion in the Schedule 14D-9. The Company further agrees to take all steps necessary to cause the Schedule 14D-9 to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable Federal securities laws. The Company shall mail, (ii) reflect or cause to be mailed, such Schedule 14D-9 to the recommendations and actions stockholders of the Company at the same time the Offer Documents are first mailed to the stockholders of the Company together with such Offer Documents. The Schedule 14D-9 and the Offer Documents shall contain the recommendations of the Board of Directors referred to described in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offerhereof. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Subthe Purchaser, with respect to written information supplied by them it specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 misleading. The Company further agrees to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersstockholders of the Company, in each case as and to the extent required by applicable federal law, including Federal securities laws. Parent The Purchaser and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to SEC. In addition, the Company Stockholders. The Company shall agrees to provide Parent the Purchaser and its counsel copies of with any comments, whether written comments and telephone notification of any oral comments or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptlyCompany, or cause its transfer agent to promptly, following promptly upon execution of this Agreement Agreement, shall furnish Merger Sub with or cause to be furnished to the Purchaser mailing labels containing the names and addressees addresses of all record Company Stockholdersholders of Shares, a non-objecting beneficial owners list owner lists and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub the Purchaser with such additional informationinformation (including, including but not limited to, updated lists and computer files containing the names of stockholdersstockholders and their addresses, mailing labels and security position listings, ) and such other information and assistance as Merger Sub the Purchaser or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements holders of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionShares.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Cellular Communications International Inc), Merger Agreement (Cellular Communications International Inc), Merger Agreement (Olivetti S P A)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of DirectorsDirectors (the “Company Board”), at a meeting duly called and held on February 11held, 2002, has unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are advisable and are in the best interest of the Company’s shareholders, (ii) approved this Agreement and the transactions contemplated hereby, including the Offer and the Merger, and (B) recommend acceptance the Shareholder Agreements and approval by the Company Stockholders of this Agreementtransactions contemplated thereby, such that the Offer, the Merger Merger, this Agreement and the other transactions contemplated hereby and by the Transaction Documents thereby are not and that such holders tender their Company Common Shares in the Offer; shall not be subject to any state takeover statutes, and (iii) took all other action necessary and advisable resolved to render recommend acceptance of the Company Rights Agreement inapplicable Offer and, to the Transaction Documentsextent required by applicable law, the Offer approval and adoption of this Agreement and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated Merger by the Transaction Documents Company’s shareholders (the provisions of any Antitakeover Laws. Subject recommendations referred to Section 6.4(c), in this clause (iii) are collectively referred to in this Agreement as the “Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(cRecommendation”). The Company hereby further represents and warrants that the Independent Advisor G▇▇▇▇▇▇ Sachs & Co. has delivered rendered to the Company Board of Directors its written Fairness Opinion that, subject to opinion that the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration $31.00 in cash to be received by the Company Stockholders pursuant to this Agreement, holders of Shares in the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates)holders. The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants advised that it has been advised by each all of its directors and executive officers that they presently intend to tender all their Shares pursuant to the Offer pursuant to the Shareholder Agreements. The Company Common Shares beneficially owned by them to will promptly furnish Parent and Merger Sub pursuant with a list of its shareholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case as of the most recent practicable date, engage a third party solicitor on customary terms for the purpose of contacting all record holders of Shares regarding the Offer and provide to Parent and Merger Sub such additional information (including, without limitation, updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent or Merger Sub may reasonably request in connection with the Offer.
(b) The As soon as practicable on the day that the Offer is commenced, the Company hereby agrees to will file with the SEC, concurrently with the filing by Parent SEC and Merger Sub disseminate to holders of the Schedule TO with respect to the Offer, Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "“Schedule 14D-9"”) that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) which shall reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)Recommendation. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Company, Parent and Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees each agree promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall become false contains any untrue statement of a material fact or misleading in omits to state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the . The Company shall agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffSEC.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 3 contracts
Sources: Merger Agreement (Laserscope), Merger Agreement (American Medical Systems Holdings Inc), Merger Agreement (American Medical Systems Holdings Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11May 8, 20022008, has, subject to the terms and conditions set forth in this Agreement, unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders each of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the MergerMerger (collectively, without any payment to the “Transactions”), are fair to, and in the best interests of, the holders of Shares, (ii) approved and declared advisable this Agreement and the Rights; Transactions (such approval having been made in accordance with the DGCL, including, without limitation, Section 203 thereof), and (iviii) took all actions necessary resolved to recommend that the holders of Shares accept the Offer and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents tender their Shares pursuant to the inclusion Offer, and that the holders of such recommendations Shares adopt this Agreement and approvals in approve the Offer DocumentsTransactions to the extent required by applicable Law. The Company shall not withdrawfurther represents that ▇▇▇▇▇▇▇ & Company, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor LLC has delivered to the Company Board of Directors its a written Fairness Opinion opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinionthis Agreement, the consideration to be received by the Company Stockholders holders of Shares pursuant to this Agreement, each of the Offer and the Merger is fair to the holders of Shares from a financial point of view to such holders (other than Parent and its affiliatesthe “Fairness Opinion”). The Company has been authorized by the Independent Advisor to permit, subject hereby consents to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, Documents of the Schedule 14D-9 (as defined below) and recommendation of the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferBoard described in this Section 2.02(a).
(b) The As promptly as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "“Schedule 14D-9"”) that containing, subject to Section 7.05(c), the Fairness Opinion and the recommendation of the Board described in Section 2.02 (a), and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Exchange Act, and any other applicable Law. The Company will (i) use its reasonable best efforts to cause the Schedule 14D-9 to comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions requirements under Law. Each of the Company Board of Directors referred to in Section 1.2(a) Company, Parent and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company Purchaser agrees to include such Schedule 14D-9 correct promptly any information provided by it for use in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected or supplementedcorrected, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company shall give Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is prior to such document being filed with the SEC or disseminated to the Company Stockholdersholders of Shares. The Company shall provide Parent and its counsel copies of with any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff the SEC Staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies with a reasonable opportunity to participate in the response of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffsuch comments.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company shall promptly furnish Merger Sub Parent and Purchaser with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance in disseminating the Offer Documents to holders of Shares as Merger Sub Parent or its agents Purchaser may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Law, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Transactions, and, if this Agreement shall be terminatedterminated in accordance with Article IX, will promptly shall deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 3 contracts
Sources: Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Radyne Corp), Merger Agreement (Comtech Telecommunications Corp /De/)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsDirectors of the Company (the "Board"), at a meeting duly called and held on February 11held, 2002, has unanimously adopted resolutions (i) determined determining that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger (as defined in Section 2.01), are fair to, and in the best interests of, the stockholders of the Company, (ii) approving and adopting this Agreement and the transactions contemplated hereby, including the Offer, the Merger, and (B) recommend acceptance the Stockholder Tender Agreement of even date between the Purchaser and approval by a certain stockholder of the Company Stockholders (the "Stockholder Tender Agreement") and the transactions contemplated thereby, in all respects and that such approval constitutes approval of the Offer, this Agreement, the Offer, the Merger and the other Stockholder Tender Agreement, and the transactions contemplated hereby and by thereby, for purposes of Section 203 of the Transaction Documents General Corporation Law of the State of Delaware (the "DGCL") and similar provisions of any other similar state statutes that such holders tender their Company Common Shares might be deemed applicable to the transactions contemplated hereby, and Article EIGHTH of the Certificate of Incorporation (as defined in the Offer; Section 2.03 of this Agreement), and (iii) took all other action necessary and advisable to render recommending that the stockholders of the Company Rights Agreement inapplicable accept the Offer, tender their Shares thereunder to the Transaction Documents, the Offer Purchaser and approve and adopt this Agreement and the Merger; PROVIDED, without any payment HOWEVER, that such recommendation may be withdrawn, modified or amended to the holders extent that the Board, by a majority vote, determines in its good faith judgment, based as to legal matters on the advice of legal counsel, that the Board is required to do so for the proper discharge of its fiduciary duties.
(b) The Company has been advised by each of its executive officers who as of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each date hereof is aware of the transactions contemplated by the Transaction Documents the provisions hereby and each of any Antitakeover Laws. Subject its Directors, that each such person intends to Section 6.4(c), the Company consents tender pursuant to the inclusion of Offer all Shares owned by such recommendations and approvals in the Offer Documentsperson. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor Board has delivered to received the Company Board opinion of Directors its written Fairness Opinion that, subject to PaineWebber Incorporated ("PaineWebber") that the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the proposed consideration to be received by the Company Stockholders holders of Shares pursuant to this Agreement, the Offer and the Merger is fair to such holders from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerview.
(bc) The Company hereby agrees shall use its best efforts to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Solicitation/ Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with any and all amendmentssuch Schedule 14D-9, supplements and exhibits theretoas amended from time to time, the "Schedule 14D-9") that will (ion the date the Offer Documents are filed with the SEC, and in any event shall file with the SEC the Schedule 14D-9 not later than the date required pursuant to the Exchange Act and the applicable rules and regulations promulgated thereunder, containing the recommendation described in Section 1.02(a) and shall mail the Schedule 14D-9 to the stockholders of the Company. The Schedule 14D-9 shall comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions requirements of the Company Board of Directors referred to in Section 1.2(a) Exchange Act and (iii) include the Fairness Opinionrules and regulations promulgated thereunder on the date filed with the SEC and on the date first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company's stockholders, and shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied in writing by the Parent or the Purchaser specifically for inclusion or incorporation by reference in the Schedule 14D-9. Each of the Company, the Parent and Merger Sub shall supplement the Purchaser agrees promptly to correct any information provided by them specifically it for use in the Schedule 14D-9 if and to include the extent that such information shall have become false or misleading in any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)material respect, and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9, 14D-9 as so corrected amended or supplemented, supplemented to be filed with the SEC and disseminated to the Company StockholdersCompany's stockholders, in each case as and to the extent required by applicable federal Federal securities laws. The Parent and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule 14D-9 before it is filed and all amendments and supplements thereto prior to their filing with the SEC or disseminated dissemination to stockholders of the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffCompany.
(cd) In connection with the Offer, the Company shall promptlywill, or and will cause its transfer agent (the "Transfer Agent") to, furnish promptly to promptly, following execution of this Agreement furnish Merger Sub with the Parent and the Purchaser mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common Shares held in stock depositories, each as of a recent date and of those persons becoming record holders after such date, together with copies of all lists of stockholders and security position listing and computer files and all other information in the Company's possession and control regarding the beneficial ownership of Shares. The Company shall promptly furnish Merger Sub the Parent and the Purchaser with such additional informationinformation (including, including but not limited to, updated lists of stockholdersholders of Shares and their addresses, mailing labels and security position listings, listings and computer files) and such other information and assistance as Merger Sub the Parent and the Purchaser or its their agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholdersholders of Shares. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary or advisable to disseminate the Offer Documents and any other documents necessary to consummate the Merger and to solicit tenders of Shares and the approval of the Merger, Parent, Merger Sub Parent and Purchaser and each of their Affiliates, agents and advisors affiliates shall hold in confidenceconfidence the information contained in any of such labels, lists and additional information, shall use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly shall deliver to the Company all copies of such information then in their possessionpossession or under their control.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 3 contracts
Sources: Merger Agreement (Hanna M a Co/De), Merger Agreement (Cimco Inc /De/), Merger Agreement (Cimco Inc /De/)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsDirectors of the Company, at a meeting duly called and held on February 11December 7, 20022003 (the “Meeting”), at which all of the Directors were present (either in person or via tele-conference), unanimously (i) determined that this Agreement, the Offer, the Merger approved and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve adopted this Agreement and the transactions contemplated hereby, including the MergerOffer and the Acquisition, (ii) recommended that the stockholders of the Company accept the Offer and tender their Shares pursuant to the Offer, and (Biii) recommend acceptance and approval by the Company Stockholders of determined that this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the MergerAcquisition, without any payment are fair to, and in the best interests of, the stockholders of the Company. Lazard Freres & Co. LLC (“Lazard”) has delivered to the Board of Directors of the Company its opinion that the Per Share Amount to be paid to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals Shares in the Offer Documents. The Company shall not withdrawis fair, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view view, to such holders (other than Parent and its affiliates)holders. The Company has been authorized by the Independent Advisor to permit, subject Subject to the prior review and consent provisions of the Independent Advisor and its counsel (such consent not to be unreasonably withheldSection 4.7(b), the Company hereby consents to the inclusion of the Fairness Opinion in the Offer Documents, Documents of the Schedule 14D-9 (as defined below) and recommendation of the Proxy Statement. The Board of Directors of Company represents and warrants that it has been advised by each in favor of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to shall file with the SEC, concurrently with as promptly as practicable after the filing by Parent and Merger Sub Purchaser of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect law. The Company shall mail such Schedule 14D-9 to the recommendations and actions stockholders of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of along with the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Schedule 14D-9 and the Offer Documents shall contain the recommendation of the Board of Directors of the Company described in Section 1.2(a) hereof. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger SubPurchaser, with respect to written information supplied by them it specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, Company’s stockholders to the extent required by applicable federal securities laws. Parent Purchaser and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 and any amendments thereto before it is they are filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall provide Parent Purchaser and its legal counsel copies of with any written comments and telephone notification of any oral comments that the Company or its legal counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent consult with Purchaser and its legal counsel copies of prior to responding to any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffcomments.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following promptly upon execution of this Agreement furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub Purchaser with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Purchaser or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements holders of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionShares.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Acquisition Agreement (Parker Hannifin Corp), Acquisition Agreement (Parker Hannifin Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11held, 2002has, unanimously subject to the terms and conditions set forth herein, (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to, and (B) recommend acceptance and approval by in the Company Stockholders of this Agreementbest interests of, the Offershareholders of the Company, the Merger (ii) approved this Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment to the holders in all respects and that such approval constitutes approval of the Rights; Offer, this Agreement and the Merger for purposes of Section 1101 of the California General Corporation Law (iv) took all actions necessary the "CGCL"), and advisable similar provisions of any other similar state statutes that might be deemed applicable to render inapplicable to each of the transactions contemplated by hereby, and (iii) resolved to recommend that the Transaction Documents shareholders of the Company accept the Offer, tender their shares of Company Common Stock thereunder to Acquisition and approve and adopt this Agreement and the Merger; provided, however, that such recommendation may be withdrawn, modified or amended in accordance with the provisions of any Antitakeover LawsSection 5.2 of this Agreement. Subject to Section 6.4(c), the The Company consents to the inclusion of such recommendations recommendation and approvals approval in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby further represents and warrants that Schr▇▇▇▇ & ▇o. Inc. (the Independent Advisor "Financial Advisor") has delivered to the Company Board of Directors its written Fairness Opinion thatopinion, subject to the various assumptions and qualifications set forth therein, dated as of the date of 7 8 hereof, that the Fairness Opinion, the cash consideration to be received by the shareholders of the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair to such shareholders from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Advisor Financial Adviser to permit, subject to the prior review and consent of by the Independent Advisor and its counsel Financial Adviser (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion fairness opinion (or a reference thereto) in the Offer DocumentsSchedule 14D-9 and, if required, the Schedule 14D-9 13E-3 (each, as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerin Section 1.2(b)).
(b) The Contemporaneously with the commencement of the Offer as provided in Section 1.1, the Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that containing the recommendation described in Section 1.2(a) and to promptly mail the Schedule 14D-9 to the shareholders of the Company. The Schedule 14D-9 will (i) comply in all material respects with the provisions of all applicable federal securities lawslaws and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company's shareholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied by Parent or Acquisition in writing for inclusion in the Schedule 14D-9. The Company, Parent and Merger Sub shall supplement the Acquisition each agrees to correct promptly any information provided by them specifically it for use in the Schedule 14D-9 if and to include the extent that it shall have become false or misleading in any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)material respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the holders of shares of Company StockholdersCommon Stock, in each case as and to the extent required by applicable federal securities laws. Parent Acquisition and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated SEC, and the Company shall consider such comments in good faith. Notwithstanding anything to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that contrary in this Agreement, if the Company Board withdraws, modifies or amends its counsel receive from recommendation in accordance with the SEC provisions of Section 5.2 of this Agreement, such withdrawal, modification or its staff with respect to the Schedule 14D-9 promptly after receipt amendment shall not constitute a breach of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffthis Agreement.
(c) In connection with the Offer, the Company shall promptly, or will cause its transfer agent to promptlypromptly furnish to Parent and Acquisition mailing labels, following execution of this Agreement furnish Merger Sub with mailing labels security position listings and any available listing or computer files containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of shares of Company Common Shares held in stock depositories, each Stock as of a recent date, date and shall promptly furnish Merger Sub Acquisition with such additional informationinformation and assistance (including, including without limitation, updated lists of stockholdersshareholders, mailing labels and security position listings, and such other information and assistance lists of securities positions) as Merger Sub Acquisition or its agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial holders of shares of Company StockholdersCommon Stock. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub Acquisition and their Affiliatesaffiliates, associates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and filesfiles and use such information only in connection with the Offer and the Merger, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Hi Holdings Inc), Merger Agreement (Haskel International Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11held, 2002, has unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to, and (B) recommend acceptance and approval by in the best interests of, the Company Stockholders of and its stockholders, (ii) approved and declared advisable this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment in accordance with the DGCL, including Section 203 thereof, and (iii) resolved to the holders recommend acceptance of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each Offer, and, if necessary, adoption of the transactions contemplated this Agreement, by the Transaction Documents the provisions of any Antitakeover LawsCompany's stockholders. Subject to Section 6.4(c), the The Company hereby consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as Documents of the date recommendation of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferBoard.
(b) The On the day that the Offer is commenced, the Company hereby agrees to shall file with the SECSEC and disseminate to holders of shares of Company Common Stock, concurrently in each case in a manner that complies with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offerapplicable federal securities Laws, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that, subject to Section 7.05, shall reflect the recommendations of the Board referred to in Section 2.02(a) above. Parent and its counsel shall be given an opportunity to review and comment on the Schedule 14D-9 sufficiently in advance of its filing with the SEC and disseminated to holders of shares of Company Common Stock. The Company shall provide Parent and its counsel with any comments that will (i) the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments and shall provide Parent and its counsel with an opportunity to participate in the response of the Company to such comments. The Schedule 14D-9 shall comply in all material respects with the provisions requirements of all applicable United States federal securities lawsLaws and, (ii) reflect on the recommendations date first filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company's stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (misleading, except that in complying with the foregoing commitments, Parent or Merger Sub may rely on the accuracy of any information supplied by Parent or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company and Parent and Merger Sub shall supplement the promptly correct any information provided by them specifically it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect and to supplement the Schedule 14D-9 to include any information that shall become necessary to include in order to make the statements therein that are based on such provided informationtherein, in light of the circumstances under which they were made, not misleading), and the . The Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be, at such time as reasonably agreed by Parent and the Company, disseminated to the holders of shares of Company StockholdersCommon Stock, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffLaws.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Parent with mailing labels containing the names and addressees addresses of all record holders of shares of Company Stockholders, a non-objecting beneficial owners list Common Stock and with security position listings of shares of Company Common Shares Stock held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of shares of Company Common Stock as Parent may reasonably request. The Company shall promptly furnish Merger Sub Parent with such additional information, including updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance in disseminating the Offer Documents to holders of shares of Company Common Stock as Merger Sub or its agents Parent may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Law, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and each of their Affiliatesaffiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, shall use such information only in connection with the transactions contemplated in this Agreement, and, if this Agreement shall be terminatedterminated in accordance with Section 9.01, will promptly shall deliver to the Company Company, and shall use their reasonable efforts to cause their affiliates, agents and advisors to deliver, all copies of and any extracts or summaries from such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Pfizer Inc), Merger Agreement (Esperion Therapeutics Inc/Mi)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11held, 2002, unanimously has (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the MergerOffer, are fair to, and in the best interests of the Company’s shareholders and other relevant stakeholders, its Subsidiaries and the enterprises carried on by the Company and its Subsidiaries, (ii) approved this Agreement and the transactions contemplated hereby, including the Offer, in accordance with applicable law, and (Biii) resolved to recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to by the holders of the Rights; and Company Shares (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c)collectively, the “Board Recommendation”); provided that the Board Recommendation may be withdrawn, modified or amended in accordance with Section 7.03. The Company hereby consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as Documents of the date recommendation of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferBoard.
(b) The Company hereby agrees shall file with the SEC as soon as practicable following the day that the Offer is commenced (but in no event shall the Company be required to file with the SEC, concurrently with SEC earlier than the filing by Parent and Merger Sub later of (i) 15 business days after the date hereof or (ii) the date the Schedule TO with respect is filed) and disseminate to holders of Company Shares, in each case as and to the Offerextent required by applicable federal securities Laws, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that will (ithat, subject to Section 7.03, shall reflect the recommendation of the Board referred to in Section 2.02(a) above and include a copy of the written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ International as described in Section 4.21. The Schedule 14D-9 shall comply in all material respects with the provisions requirements of all applicable federal securities laws, Laws. Buyer and its counsel shall be given an opportunity to review and comment on the Schedule 14D-9 at least three calendar days (iior such shorter period if three calendar days is not possible but not less than 24 hours) reflect prior to its being filed with the recommendations SEC or disseminated to holders of Company Shares. The Company shall provide Buyer and actions its counsel with any comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments and shall provide Buyer and its counsel with an opportunity to participate in the response of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)such comments. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub Buyer shall promptly furnish to the Company Stockholders promptly after all information concerning Buyer that may reasonably be requested by the commencement Company in connection with any action contemplated by this Section 2.02(b). Each of the Offer. The Company agrees and Buyer shall promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary to include in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the . The Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be, at such time as reasonably agreed by Buyer and the Company, disseminated to the holders of Company StockholdersShares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffLaws.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Buyer with mailing labels containing the names and addressees addresses of all record holders of Company Stockholders, a non-objecting beneficial owners list Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Company Shares as Buyer may reasonably request. The Company shall promptly furnish Merger Sub Buyer with such additional information, including updated lists listings and computer files of stockholdersholders of Company Shares, mailing labels and security position listings, and such other information and assistance in disseminating the Offer Documents to holders of Company Shares as Merger Sub or its agents Buyer may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable LawLaws, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the MergerOffer, Parent, Merger Sub Buyer and their Affiliateseach of its affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, shall use such information only in connection with the transactions contemplated in this Agreement, and, if this Agreement shall be terminated, will promptly shall deliver to the Company Company, and shall use its reasonable best efforts to cause its affiliates, agents and advisors to deliver, all copies of and any extracts or summaries from such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Share Purchase Agreement (Eurand N.V.), Share Purchase Agreement (Axcan Intermediate Holdings Inc.)
Company Action. (a) The Company hereby approves of and consents to the Offer and the Merger and represents and warrants that the Company that, subject to Section 7.8(b), its Board of Directors, Directors (at a meeting duly called and held on February 11, 2002, unanimously held) has by the unanimous vote of all directors present (iA) determined that each of this Agreement, the Offer, Offer and the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable to and in the best interests of the Company and the Company Stockholders; Company's stockholders, (iiB) voted to (A) approve approved this Agreement and the transactions contemplated hereby, including the Offer and the Merger, and (B) recommend acceptance and such approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable is sufficient to render the Company Rights Agreement restrictions on "business combinations" (as defined in Section 203 of the General Corporation Law of the State of Delaware) set forth in Section 203 of the General Corporation Law of the State of Delaware inapplicable to this Agreement and the Transaction Documentstransactions contemplated hereby, including the Offer and the Merger, without any payment and (C) declared the advisability of this Agreement and resolved to recommend acceptance of the Offer and adoption of this Agreement by the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover LawsShares. Subject to Section 6.4(c), the The Company hereby consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such Documents of the recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that of the Independent Advisor has delivered to the Company Company's Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to described in this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliatesSection 2.3(a). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to shall file with the SEC, concurrently with as soon as practicable on the filing by Parent and Merger Sub date of the Schedule TO with respect to commencement of the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits or amendments thereto, the "Schedule 14D-9") that containing the recommendations of the Board of Directors of the Company in favor of the Offer and the adoption of this Agreement and the transactions contemplated hereby, including the Merger, and shall promptly mail the Schedule 14D-9 to the stockholders of the Company. Parent will (i) promptly supply to the Company in writing, for inclusion in the Schedule 14D-9, any information concerning Parent or Purchaser required under the Exchange Act and the rules and regulations thereunder to be included in the Schedule 14D-9. The Schedule 14D-9 will comply in all material respects with the provisions of all applicable federal securities lawslaws and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company's stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied by Parent and Merger Sub shall supplement the information provided by them specifically or Purchaser in writing for use inclusion in the Schedule 14D-9 14D-9. The Company further agrees to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, 14D-9 to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of the Company, Parent and its Purchaser shall promptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall be or have become false or misleading in any material respect and the Company shall take all action necessary to cause the Schedule 14D-9 as so corrected to be filed promptly with the SEC and disseminated to the holders of Shares as and to the extent required by applicable law. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed and any amendments thereto prior to the filing thereof with the SEC or disseminated to the Company StockholdersSEC. The Company shall agrees to provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Parent and Purchaser with mailing labels labels, security position listings, any non-objecting beneficial owner lists and all available listings or computer files containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common Shares held in stock depositories, each as of a recent date, the latest practicable date and shall promptly furnish Merger Sub Parent and Purchaser with such additional information, information and assistance (including updated lists of stockholders, mailing labels labels, lists of security positions and security position listings, non-objecting beneficial owner's lists) as Parent and such other information and assistance as Merger Sub Purchaser or its their agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements holders of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionShares.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Symbol Technologies Inc), Agreement and Plan of Merger (Symbol Technologies Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that Offer. As soon as practicable on the Company Board date of Directors, at a meeting duly called and held on February 11, 2002, unanimously (i) determined that this Agreement, the commencement of the Offer, the Merger Company shall file with the Commission a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9"), and shall mail the Schedule 14D-9 to the holders of the Shares as promptly as practicable after the commencement of the Offer. The Schedule 14D-9 will at all times set forth, and the other transactions contemplated herebyCompany hereby represents, taken together, that the Board of Directors of the Company has unanimously (a) determined that the Offer and the Merger (as defined in Section 2.1) are at a price and on terms fair to, advisable to and in the best interests of the Company and the Company Stockholders; its shareholders, (iib) voted to (A) approve approved this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment and (c) resolved to recommend acceptance of the Offer and approval and adoption of the Merger and this Agreement by the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer DocumentsShares. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that give the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule 14D-9 before it is and any amendments or supplements thereto prior to their being filed with the SEC or disseminated Commission, and shall furnish to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC Commission or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. Parent, the Purchaser and the Company each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that any such information shall have become false or misleading in any material respect. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel hereby consents to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held inclusion in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary Tender Offer Material (as defined in Rule 14d-2(b)(5) adopted pursuant to consummate the MergerSecurities Exchange Act of 1934, Parentas amended (the "Exchange Act")) of the recommendation and determinations referred to in this Section 1.2. The Company further represents and warrants that Summit Investment Corporation, Merger Sub and their Affiliatesfinancial advisor to the Company (the "Advisor"), agents and advisors shall hold in confidence, and use only in connection with has delivered to the Company's Board of Directors its written opinion to the effect that the consideration to be received by the holders of Shares pursuant to the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up is fair to such number holders from a financial point of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directorsview. The Company shallhas been authorized by the Advisor to permit the inclusion of such fairness opinion in the Offer Documents and the Schedule 14D-9, upon request by Merger Sub, promptly take all actions necessary and in the Proxy Statement referred to cause Merger Sub's designees to be elected in Section 3.2.8(c). The Company hereby consents to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations inclusion of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include fairness opinion in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company Documents and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actionTender Offer Material.
Appears in 2 contracts
Sources: Merger Agreement (Peerless Industrial Group Inc), Merger Agreement (R B Capital Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that (i) the Company Board of DirectorsBoard, at a meeting duly called and held on February 11April 4, 20021998, has unanimously (iA) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders each of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment are fair to and in the best interests of the holders of the Rights; Shares, (B) approved and (iv) took all actions necessary adopted this Agreement and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents hereby (such approval and adoption having been made in accordance with the provisions of any Antitakeover Laws. Subject to Section 6.4(c), sec.203 of Delaware Law) and (C) recommended that the stockholders of the Company consents to the inclusion of such recommendations and approvals in accept the Offer Documents. The Company shall not withdrawand approve and adopt this Agreement and the transactions contemplated hereby, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has (ii) Morg▇▇ ▇▇▇n▇▇▇, ▇▇an ▇▇▇▇▇▇, ▇▇scover & Co. ("Morg▇▇ ▇▇▇n▇▇▇") ▇as delivered to the Company Board of Directors its a written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, opinion that the consideration to be received by the Company Stockholders holders of Shares pursuant to this Agreement, each of the Offer and the Merger is fair to the holders of Shares from a financial point of view view. Unless the recommendation of the Board has been withdrawn in accordance with Section 6.05, the Company hereby consents to such holders the inclusion in the Offer Documents of the recommendation of the Board described in the immediately preceding sentence and agrees to cause Morg▇▇ ▇▇▇n▇▇▇ ▇▇ consent to the inclusion of its written opinion in the offering documents forming a part of the Solicitation/Recommendation Statement on Schedule 14D-9 (other than Parent together with all amendments and its affiliatessupplements thereto, the "Schedule 14D-9"). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend either to tender all Company Common Shares beneficially owned by them to Merger Sub Purchaser pursuant to the OfferOffer or to vote such Shares in favor of the approval and adoption by the stockholders of the Company of this Agreement and the transactions contemplated hereby.
(b) The As soon as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to shall file with the SECSEC the Schedule 14D-9 containing, concurrently with unless the filing by Parent and Merger Sub recommendation of the Board has been withdrawn in accordance with Section 6.05, the recommendation of the Board described in Section 1.02(a) and shall disseminate the Schedule TO with respect 14D-9 to the Offerextent required by Rule 14d-9 promulgated under the Securities Exchange Act of 1934, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 as amended (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9Exchange Act") that will (i) comply in all material respects with the provisions of all ), and any other applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly Company, Parent and Purchaser agree to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in promptly any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by any of them specifically for use in the Schedule 14D-9 to include any information that which shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to 2 9 take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company shall promptly furnish Merger Sub Purchaser with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent, Purchaser or its their agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidenceconfidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminatedterminated in accordance with Section 8.01, will promptly shall deliver to the Company all copies of such information then in their possession. ARTICLE II THE MERGER Section 2.01.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Viad Corp), Merger Agreement (Moneygram Payment Systems Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11the Board of Directors of the Company has, 2002, unanimously after receiving the recommendation in favor thereof of the special committee of the Board of Directors of the Company (ithe "Special Committee") determined that formed to consider this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby, taken together, (i) approved and adopted this Agreement and the transactions contemplated hereby and determined that the Offer and the Merger are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; its stockholders and on terms that are fair to such stockholders, and (ii) voted to (A) recommended that the Company's stockholders accept the Offer and tender all of their Shares in connection therewith and, if required under the DGCL, approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company its Board of Directors its has received the written Fairness Opinion thatopinion of ▇▇▇▇▇▇▇▇▇, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation that the consideration to be received by the Company Stockholders Company's stockholders pursuant to this Agreement, each of the Offer and the Merger is fair to the Company's stockholders from a financial point of view view, and that a complete and correct signed copy of such opinion will be delivered promptly following the date hereof by the Company to such holders (other than Parent and its affiliates)Parent. The Company represents that the Special Committee has been authorized by duly adopted resolutions providing for the Independent Advisor to permit, subject to the prior review and consent dissolution of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), Special Committee on the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 Cut-Off Date (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer).
(b) The As soon as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with any such Schedule 14D-9, as amended and all amendments, supplements and exhibits theretosupplemented from time to time, the "Schedule 14D-9") and shall mail the Schedule 14D-9 to the stockholders of the Company. Subject to the fiduciary duties of the Board of Directors as advised by counsel, the Offer Documents and the Schedule 14D-9 shall contain the recommendation of the Company's Board of Directors described in Section 1.2(a). The Company agrees that will (i) the Schedule 14D-9 shall comply as to form in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions requirements of the Company Board of Directors referred to in Section 1.2(a) Exchange Act and (iii) include the Fairness Opinionrules and regulations promulgated thereunder and, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in on the mailing of date filed with the Offer Documents by Merger Sub SEC and on the date first published, sent or given to the Company Stockholders promptly after the commencement Company's stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied by Parent or the Purchaser or any of their respective representatives which is included in the Schedule 14D-9. Each of the Company, Parent and Merger Sub shall supplement the Purchaser agrees to correct promptly any information provided by them specifically it for use in the Schedule 14D-9 if and to include any the extent that such information that shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9, 14D-9 as so corrected amended or supplemented, supplemented to be filed with the SEC and disseminated to the Company StockholdersCompany's stockholders, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed and all amendments and supplements thereto prior to their filing with the SEC or disseminated dissemination to stockholders of the Company StockholdersCompany. The Company shall agrees to provide Parent and its counsel copies of with any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub the Purchaser promptly with mailing labels containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common Shares held in stock depositories, each Stock as of a recent date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall promptly furnish Merger Sub with to the Purchaser such additional information, information and assistance (including updated lists of stockholders, mailing labels and security position listings, listings and such other information and assistance computer files) as Merger Sub or its agents the Purchaser may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company StockholdersCompany's stockholders. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and the Purchaser and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, will use such information only in connection with the Offer and the other transactions contemplated hereby and, if this Agreement shall be terminated, will promptly deliver deliver, and will use their reasonable best efforts to cause their agents to deliver, to the Company all copies of such information then in their possessionpossession or control.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Andros Inc), Merger Agreement (Andros Acquisition Inc)
Company Action. (a) The Company hereby approves of and consents to and approves the Offer and represents and warrants that pursuant to the Company Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated . The Company hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company further consents to the inclusion of such recommendations and approvals in the Offer DocumentsDocuments of such approval and Board Recommendation, provided that the Company shall not have withdrawn or modified such Board Recommendation as provided in Section 7.3(e) or Section 7.3(f). The Company shall not withdraw, withdraw or modify or fail to reaffirm such recommendations and approvals Board Recommendation in any manner inconsistent with adverse to Sub or Parent except as provided in Section 6.4(c7.3(e) or Section 7.3(f). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with Promptly following the filing by Parent and Merger Sub of the Schedule TO by Sub, the Company shall file with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "“Schedule 14D-9"”) that will (icontaining, except as provided in Section 7.3(e) or Section 7.3(f), Board Recommendation. The Company shall use its reasonable best efforts to cause the Schedule 14D-9 to be filed with the SEC on the same day as the Schedule TO shall be filed with the SEC. The Company shall promptly mail the Schedule 14D-9 to the holders of shares of Company Common Stock together with the Offer Documents and shall use its reasonable best efforts to cause the Offer Documents to be disseminated in all material respects as required by applicable federal securities laws. The Company shall also include a notice, in compliance with Section 251(h) and Section 262 of the DGCL, of appraisal rights in connection with the Merger under the DGCL. The Company shall use its reasonable best efforts to cause the Schedule 14D-9 to comply in all material respects with the provisions applicable requirements of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Company, Parent and Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)respect, and the Company shall take all steps necessary further agrees to use its reasonable best efforts to cause the Schedule 14D-9, as so corrected or supplementedcorrected, to be filed with the SEC and disseminated to the holders of shares of Company StockholdersCommon Stock, to the extent in each case in all material respects as required by applicable federal securities laws. Parent or Sub shall promptly furnish to the Company all information concerning Parent and Sub that is required or reasonably requested by the Company in connection with its obligations relating to the Schedule 14D-9. The Company shall give Parent, Sub and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to SEC. In addition, the Company Stockholders. The Company shall agrees to (i) provide Parent Parent, Sub and its their counsel copies of in writing with any written comments and telephone notification of any oral comments that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall , (ii) use its commercially reasonable best efforts to respond to such comments promptlyprovide Parent, Sub and shall provide Parent and its their counsel copies a reasonably detailed description of any written responses and telephonic notification of any verbal responses by oral comments the Company or its counsel may receive from time to time from the SEC or its staffstaff with respect to the Schedule 14D-9 promptly after the receipt of such comments, and (iii) unless there has been a Change of Recommendation, provide Parent, Sub and their counsel reasonable opportunity to review and comment on any written or oral response to such comments or any proposed amendment to the Schedule 14D-9 prior to the filing thereof with the SEC.
(c) In connection with the Offer, the Company shall promptly, promptly furnish or cause to be furnished (including by instructing its transfer agent to promptly, following execution of this Agreement furnish Merger promptly furnish) to Sub with mailing labels containing the names and addressees addresses of all record holders of shares of Company Stockholders, a non-objecting beneficial owners list Common Stock and with security position listings of shares of Company Common Shares Stock held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and non-objecting beneficial owners of shares of Company Common Stock. The Company shall use its reasonable best efforts to promptly furnish Merger or cause to be furnished to Sub with such additional information, including updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance in disseminating the Offer Documents to holders of shares of Company Common Stock as Merger Parent or Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of Law, including applicable Lawstock exchange rules, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Parent and Sub and their Affiliates, agents and advisors shall hold in confidenceconfidence the information contained in such labels, listings and files and shall use such information only in connection with the Transactions. If the Offer and the Merger, the information contained in any such labels, listings and files, and, is terminated or if this Agreement shall be terminated, Sub and Parent will promptly deliver and cause their Representatives to deliver to the Company (and delete electronic copies of) all copies copies, summaries and extracts of such information then in their possessionpossession or control.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants war- rants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11held, 2002, has unanimously (i) determined that this AgreementAgreement and the Transactions, including the Offer, the Merger Merger, and the other transactions purchase of shares of Company Common Stock and associated Rights contemplated hereby, taken togetherby the Offer, are at a price advisable and on terms fair to, advisable to and in the best interests of the Company and the Company Stockholders; Company's shareholders, (ii) voted to (A) approve approved and adopted this Agreement and the transactions contemplated herebyTransactions, including the Offer, the Merger, and (B) recommend acceptance the purchase of shares of Company Common Stock and approval associated Rights contemplated by the Company Stockholders of this Agreement, the Offer, in accordance with the Merger and requirements of the other transactions contemplated hereby and by DGCL, which approval satisfies in full the Transaction Documents and that such holders tender their Company Common Shares requirements of prior approval contained in Section 203(a)(1) of the Offer; DGCL, (iii) took all other action necessary and advisable resolved to render recommend that the shareholders of the Company accept the Offer, tender their shares of Company Common Stock and associated Rights Agreement inapplicable pursuant to the Transaction Documents, the Offer and approve and adopt this Agreement and the Merger, without any payment to the holders of the Rights; Merger and (iv) took all actions necessary and advisable resolved to render inapplicable to each of amend the transactions Rights Agreement as contemplated by the Transaction Documents the provisions of any Antitakeover Lawsherein. Subject to Section 6.4(c), the The Company hereby consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy StatementStatement (as defined below) (if any) of such recommendation of the Board. The Company represents that the Board has received the written opinion (the "Bear ▇▇▇▇▇▇▇ Fairness Opinion") of Bear, ----------------------------- ▇▇▇▇▇▇▇ & Co. Inc. ("Bear ▇▇▇▇▇▇▇"), stating that the proposed consideration to ------------ be received by the holders of shares of Company Common Stock pursuant to the Offer and warrants that it the Merger is fair to such holders from a financial point of view. The Company has been authorized by Bear ▇▇▇▇▇▇▇ to permit, subject to the prior review and consent by Bear ▇▇▇▇▇▇▇ (such consent not to be unreasonably with- held), the inclusion of the Bear ▇▇▇▇▇▇▇ Fairness Opinion (or a reference thereto) in the Offer Documents and the Schedule 14D-9. The Company has been advised by each of its directors and by each executive officers officer of the Company who as of the date hereof is actually aware (to the knowledge of the Company) of the Transactions that they intend each such person intends to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferOffer all shares of Company Common Stock owned by such person.
(b) The Company hereby agrees will cause its transfer agent to promptly furnish Parent and Purchaser with a list of the Company's shareholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of shares of Company Common Stock and lists of securities positions of shares of Company Common Stock held in stock depositories and to provide to Parent and Purchaser such additional information (including, without limitation, updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent or Purchaser or their agents may reasonably request in connection with the Offer. Subject to the require ments of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Transactions, Parent and Purchaser and each of their affiliates, associates and agents will hold in confidence the information contained in any such labels, listings and files, will use such information only in connection with the Offer and the Merger and, if this Agreement is terminated, will deliver, and will use their reasonable efforts to cause their agents to deliver, to the Company all copies and any extracts or summaries from such information then in their possession or control.
(c) As soon as reasonably practicable on the date of commencement of the Offer, the Company shall file with the SECSEC and disseminate to holders of shares of Company Common Stock, concurrently with the filing by Parent in each case as and Merger Sub of the Schedule TO with respect to the Offerextent required by applicable federal securities laws, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) shall reflect the recommendations and actions of the Company Board of Directors referred -------------- to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)above. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company and Parent each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained provided by it specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 misleading. The Company agrees to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, supplemented to be filed with the SEC and to be disseminated to the holders of shares of Company StockholdersCommon Stock, in each case, as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is prior to its being filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall agrees to provide to Parent and its Purchaser and their counsel copies of with any written comments and telephone notification of any oral comments that or other communications which the Company or its counsel may receive from the Staff of the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such commentsthereof. The Company shall use its commercially reasonable efforts to respond to such comments promptlyParent, Purchaser and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel each hereby agree to provide promptly such information necessary to the SEC or its staff.
(c) In connection with preparation of the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names exhibits and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer schedules to the record Schedule 14D-9 and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate which the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, respective party responsible therefor will promptly deliver to the Company all copies of such information then in their possessionreasonably request.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Wesley Jessen Visioncare Inc), Agreement and Plan of Merger (Novartis Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that Tender Offer. Concurrently with the filing of the Schedule TO, the Company Board of Directors, at a meeting duly called shall file with the SEC and held on February 11, 2002, unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment mail to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from Shares a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Solicitation/ Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits or amendments thereto, the "“Schedule 14D-9"”). The Schedule 14D-9 will set forth, and the Company hereby represents to Ford and Parent, that (a) that will each of the Special Committee and the Board of Directors of the Company, at meetings duly called and held, has (i) determined that each of the Tender Offer and the Merger is fair to and in the best interests of the Company’s stockholders (other than Parent and its affiliates); (ii) approved this Agreement and the transactions contemplated hereby, including, without limitation the Tender Offer and the Merger; and (iii) resolved to recommend that the Company’s stockholders accept the Tender Offer, tender their Shares pursuant thereto and approve and adopt this Agreement and the Merger if submitted for their approval; provided, however, that such recommendation may be withdrawn or modified to the extent that the Board, based on the recommendation of the Special Committee, determines in good faith, based on the advice of outside counsel, that such recommendation would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law; and (b) Lazard Frères & Co. LLC, the financial advisor to the Special Committee (“Lazard LLC”), has delivered to the Special Committee and the Board its written opinion that the consideration to be received by the stockholders of the Company (other than Parent and its affiliates) pursuant to each of the Tender Offer and the Merger is fair to such stockholders from a financial point of view. The Schedule 14D-9 will comply in all material respects with the provisions of all applicable federal securities lawslaws and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company’s stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied by Ford or Parent and Merger Sub shall supplement the information provided by them specifically in writing for use inclusion in the Schedule 14D-9 14D-9. The Company further agrees to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, 14D-9 to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of the Company, on the one hand, and Ford and Parent, on the other hand, agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false and misleading in any material respect and the Company Stockholdersfurther agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable the opportunity to review and comment on the initial Schedule 14D-9 before it is filed with the SEC or disseminated to SEC. In addition, the Company Stockholders. The Company shall agrees to provide Ford, Parent and its their counsel copies of with any written comments and telephone notification of any oral comments or other communications that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffother communications.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Offer to Purchase (Ford Motor Co), Offer to Purchase (Ford Motor Co)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously has (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interests of the Company's shareholders, (Bii) recommend acceptance approved and approval by the Company Stockholders of adopted this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment to in accordance with the holders requirements of the Rights; Tennessee Law and (iviii) took all actions necessary and advisable subject to render inapplicable Section 7.03(c), resolved to each recommend acceptance of the transactions contemplated Offer and approval and adoption of this Agreement and the Merger by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documentsits shareholders. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c)further represents that ▇.▇. The Company hereby represents and warrants that the Independent Advisor ▇▇▇▇▇▇▇▇ & Co. has delivered to the Company Company's Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, opinion that the consideration to be received by the Company Stockholders pursuant to this Agreement, paid in the Offer and the Merger is fair to the holders of Shares from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants advised that it has been advised by each all of its directors and its three top executive officers that they who own Shares intend either to tender all Company Common their Shares beneficially owned by them to Merger Sub pursuant to the Offer or to vote in favor of the Merger. The Company will promptly furnish Parent with a list of its shareholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and will provide to Parent such additional information (including, without limitation, updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer.
(b) The As soon as practicable on the day that the Offer is commenced, the Company hereby agrees to shall file with the SECSEC and disseminate to holders of Shares, concurrently with the filing by Parent in each case as and Merger Sub of the Schedule TO with respect to the Offerextent required by applicable federal securities laws, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities lawsthat, (ii) subject to Section 7.03(c), shall reflect the recommendations and actions of the Company Company's Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)above. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Company, Parent and Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees Subsidiary each agree promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect respect. The Company agrees to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule 14D-9 before it is (and any amendments thereto) prior to its being filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall provide to Parent and its counsel copies of with any written comments and telephone notification of any oral comments or other communications that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffother communications.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Charming Shoppes Inc), Merger Agreement (Catherines Stores Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11, 2002, has unanimously consented to the Offer and (i) determined that this Agreement, Agreement (taking into account the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (iiGo-Shop Period described herein) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, Offer and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger (the "Transactions"), are fair to and in the best interests of the Company's stockholders, (ii) approved and adopted this Agreement and the other transactions contemplated hereby Transactions, in accordance with the requirements of Nevada Law and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentsresolved, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject subject to Section 6.4(c), the Company consents to the inclusion recommend acceptance of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point approval and adoption of view to such holders (other than Parent and this Agreement by its affiliates)stockholders. The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants advised that it has been advised by each all of its directors and executive officers that they who own Shares intend to tender all Company Common their Shares beneficially owned by them to Merger Sub pursuant to the Offer as set forth in the Tender and Voting Agreements. The Company shall promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and shall provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer.
(b) The As soon as practicable on the Offer Commencement Date, the Company hereby agrees to shall file with the SECSEC and disseminate to holders of Shares, concurrently with the filing by Parent in each case as and Merger Sub of the Schedule TO with respect to the Offerextent required by applicable federal securities laws, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities lawsthat, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in , shall reflect the mailing recommendations of the Offer Documents by Company Board referred to above. Each of the Company, Parent and Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become (or shall have become known to be) false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the respect. The Company shall take all steps necessary use reasonable best efforts to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case to the extent required by applicable federal securities laws. Parent Parent, Merger Sub and its their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 each time before it is filed with the SEC or disseminated to SEC, and the Company Stockholdersshall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel. The Company shall provide Parent Parent, Merger Sub and its their counsel copies of with (i) any comments or other communications, whether written comments and telephone notification of any oral comments or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company those comments or other communications and (ii) a reasonable opportunity to participate in the Company's response to those comments and to provide comments on that response (to which reasonable and good faith consideration shall use its commercially reasonable efforts to respond to such comments promptlybe given), and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses including by participating with the Company or its counsel to the SEC in any discussions or its staff.
(c) In connection meetings with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionSEC.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Emergent Group Inc/Ny), Merger Agreement (Universal Hospital Services Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11held, 2002, has unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of such meeting, were advisable and fair to and in the Fairness Opinionbest interests of the stockholders of the Company, (ii) approved and adopted this Agreement and the transactions contemplated hereby, and, for purposes of exempting the Stockholders Agreements and the transactions contemplated thereby from the provisions of Section 203 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"), approved and adopted the Stockholders Agreements and the transactions contemplated thereby, the consideration to be received by approvals described in this clause (ii) constituting approval of the foregoing for purposes of Section 203 of the DGCL, and (iii) recommended that the stockholders of the Company Stockholders pursuant to this Agreement, accept the Offer and tender their Shares pursuant to the Offer and approve and adopt this Agreement and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliatesif required). The Company has been authorized by the Independent Advisor to permit, subject hereby consents to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, Documents of reference to the Schedule 14D-9 (as defined below) and recommendation of the Proxy StatementCompany Board described in the immediately preceding sentence. The Company represents to the Purchaser and warrants the Parent that it the Company has been advised by each of its directors and executive officers that they intend either to tender or cause to be tendered all Company Common Shares beneficially owned by them to Merger Sub the Purchaser pursuant to the Offer.
(b) The As soon as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to that it will file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with containing the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions recommendation of the Company Board of Directors referred to described in Section 1.2(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Securities Exchange Act of 1934, as amended (iii) include the Fairness Opinion"Exchange Act"), in each case subject to Section 6.4(c)and any other applicable federal securities laws. The Company agrees to include such shall provide the Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Parent such that the Parent shall have a reasonable opportunity to comment thereon, and the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct shall not file the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent has reasonably objected thereto. The Company, the Parent and Merger Sub, with respect the Purchaser each agrees to information supplied by them specifically for use in the Schedule 14D-9, shall correct promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically the Company, the Parent or the Purchaser, as the case may be, for use in the Schedule 14D-9 to include any information that which shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so appropriately corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide the Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (C Ats Software Inc), Merger Agreement (Misys PLC)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, including all of the disinterested directors, at a meeting duly called and held on February 11held, 2002has, unanimously subject to the terms and conditions set forth herein, (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve approved this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment and that such approval constitutes approval of the Offer, this Agreement and the Merger for purposes of Section 180.1141 of the BCL, and (ii) resolved to recommend that the shareholders of the Company accept the Offer, tender their Shares thereunder to Newco and approve and adopt this Agreement and Merger; provided, that such recommendation may be withdrawn, modified or amended if, the Company reasonably determines in good faith, based on the advice of outside legal counsel to the holders Company, that such action is necessary in order for the Board of Directors of the Rights; and (iv) took all actions necessary and advisable Company to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Lawscomply with its fiduciary duties under applicable law. Subject to Section 6.4(c), the The Company consents to the inclusion of such recommendations recommendation and approvals approval in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with SEC as soon as practicable on the filing by Parent and Merger Sub date of commencement of the Schedule TO with respect to the Offer, Offer a Tender Offer Solicitation/Solicitation/ Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that containing the recommendation described in Section 1.2(a). The Schedule 14D-9 will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees Company, Parent and Newco each agree promptly to correct any information provided by them for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Notwithstanding anything to the contrary in this Agreement, the Board of Directors may withdraw, modify or amend its recommendation if the Company reasonably determines in good faith, based on the advice of outside legal counsel to the Company, that such action is necessary in order for the Board of Directors of the Company to comply with its fiduciary duties under applicable law. To the extent practicable, Parent and its counsel shall be given a reasonable an opportunity to review and comment on upon the Schedule 14D-9 before it is filed and any amendments thereto prior to the filing thereof with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffSEC.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement will promptly furnish Merger Sub Parent and Newco with mailing labels labels, security position listings and any available listing or computer files containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common the Shares held in stock depositories, each as of a recent date, date and shall promptly furnish Merger Sub Newco with such additional informationinformation and assistance (including, including without limitation, updated lists of stockholdersshareholders, mailing labels and security position listings, and such other information and assistance lists of securities positions) as Merger Sub Newco or its agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholdersholders of Shares. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub Newco and their Affiliatesaffiliates, associates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and filesfiles only in connection with the Offer and the Merger, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Taqu Inc), Merger Agreement (Giddings & Lewis Inc /Wi/)
Company Action. (a) The Company hereby approves of and consents to the Offer and the Merger and represents and warrants that the Company Board Board, including all of Directorsthe independent directors of the Company, at a meeting duly called and held on February 11held, 2002has, unanimously subject to the terms and conditions set forth herein, adopted resolutions, which are not conditional and have not been amended or repealed, pursuant to which the Board (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to, and (B) recommend acceptance and approval by in the Company Stockholders of this Agreementbest interests of, the Offerstockholders of the Company, (ii) declared that the Merger is advisable and approved this Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment to the holders in all respects and such approval constitutes prior approval of the Rights; Offer, this Agreement and the Merger for purposes of Section 203(a)(1) of the Delaware General Corporation Law (ivthe "DGCL") took all actions necessary and advisable similar provisions of any other similar state statutes that might be deemed applicable to render inapplicable to each of the transactions contemplated hereby, (iii) recommended that the stockholders of the Company accept the Offer, tender their Shares thereunder to Acquisition and, if required by law, approve and adopt this Agreement and the Transaction Documents Merger; and in addition that the provisions of any Antitakeover Laws. Subject Company consents, subject to Section 6.4(c)5.4, the Company consents to the inclusion of such recommendations recommendation and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion approval in the Offer Documents, and (iv) takes all actions to amend the Schedule 14D-9 (as defined below) Company Option Plans and the Proxy Statement. The Company represents and warrants that it has been advised Rights Agreements contemplated by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerthis Agreement.
(b) The Company hereby agrees to file with the SEC, concurrently with SEC as soon as practicable after the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, date hereof a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any and all amendments, amendments thereof or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with containing the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to recommendation described in Section 1.2(a) and (iii) include to promptly mail the Fairness Opinion, in each case subject Schedule 14D-9 to Section 6.4(c)the stockholders of the Company. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company Company, Parent and Acquisition each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it such information shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent The Parent, Acquisition and its their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before prior to it is being filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall agrees to provide Parent to Parent, Acquisition and its their counsel copies of any written comments and telephone notification of any oral comments that or other communications which the Company or its counsel receive receives from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.SEC
Appears in 2 contracts
Sources: Merger Agreement (Royal Bank of Canada), Merger Agreement (Prism Acquisition Subsidiary Inc)
Company Action. (a) The Company hereby approves of and consents agrees to undertake the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11held, 2002has, unanimously subject to the terms and conditions set forth herein, (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated herebyTransactions, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without are fair to, and in the best interests of, the stockholders of the Company, (ii) approved this Agreement and the Transactions, including the Offer and the Merger, in all respects and that such approval constitutes approval of the Offer, this Agreement and the Merger for purposes of Sections 203 and 251 of the DGCL and similar provisions of any payment other similar state statutes that might be deemed applicable to the holders of Transactions, (iii) has taken all action under the Rights; Rights Agreement to make the representations and warranties contained in Section 6.13 true and correct in all respects, and (iv) took all actions necessary and advisable resolved to render inapplicable to each recommend that the stockholders of the transactions contemplated by Company accept the Transaction Documents Offer, and approve and adopt this Agreement and the provisions of any Antitakeover Laws. Subject to Section 6.4(c)Merger; provided, the Company consents however, that such recommendation -------- ------- may be withdrawn, modified or amended to the inclusion extent that the Board by a majority vote determines in its good faith judgment, based as to legal matters on the advice of legal counsel, that the Board is required to do so in the exercise of its fiduciary duties. The Company shall include a statement of such recommendations recommendation and approvals approval in the Offer Documents. The Company shall not withdrawfurther represents that ▇▇▇▇▇▇ Gull ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that Inc. (the Independent Advisor "Financial --------- Advisor") has delivered to the Company Board of Directors its written Fairness Opinion that, subject to opinion that the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the ------- consideration to be received by the Company Stockholders pursuant to this Agreement, in the Offer and the Merger by the holders of Shares (other than Purchaser and its affiliates) is fair from a financial point of view to such holders (other than Parent and its affiliates)holders. The Company agrees to, and has been authorized by the Independent Financial Advisor to permit, subject to the prior review and consent of by the Independent Financial Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion fairness opinion (or a reference thereto) in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps action as may be necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating effect the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, including, without limitation, promptly mailing the Offer Documents to the record holders and such affirmative majority vote shall be sufficient to take any such actionbeneficial owners of the Shares.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Global Motorsport Group Inc), Agreement and Plan of Merger (Fremont Partners Lp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directorsthat, at a meeting duly called and held on February 11held, 2002, unanimously its Board of Directors has (i) unanimously determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement Stock Purchase Agreements and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentsthereby, including, without limitation, the Offer and the Merger, without any payment are fair to and in the holders best interest of the Rights; Company's stockholders, (ii) unanimously approved this Agreement, the Company Stock Purchase Agreement and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c)hereby and thereby, including, without limitation, the Offer and the Merger and (iii) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares thereunder to Purchaser and approve and adopt this Agreement, the Company Stock Purchase Agreement and the Merger; provided, that such recommendation may be withdrawn, modified or amended if, in the good faith opinion of the Directors, only after receipt of advice from outside legal counsel, the failure to withdraw, modify or amend such recommendation would result in the Board violating its fiduciary duties to the Company's stockholders under applicable law. The Company consents to the inclusion of such recommendations recommendation and approvals approval in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Contemporaneously with the commencement of the Offer as provided for in Section 1.01, the Company hereby agrees to will file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (which schedule, together with any all amendments and all amendments, supplements and exhibits thereto, is hereafter referred to as the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) which shall reflect the recommendations and actions of the Company Company's Board of Directors referred to in Section 1.2(a) above. The Company further agrees to take all steps necessary to cause the Schedule 14D-9 to be filed with the SEC and (iii) include to be disseminated to holders of the Fairness OpinionShares, in each case subject as and to Section 6.4(c)the extent required by applicable federal securities laws. The Company Each of the Company, on the one hand, and Parent and Purchaser, on the other hand, agrees to include such Schedule 14D-9 promptly correct any information provided by it for use in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to stockholders of the Company StockholdersCompany, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable the opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to SEC. In addition, the Company Stockholders. The Company shall agrees to provide Parent and its counsel copies of with any comments, whether written comments and telephone notification of any oral comments or oral, that the Company or and/or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffother communications.
(c) In connection with the Offer, the Company shall promptlywill promptly furnish or cause to be furnished to Parent and Purchaser mailing labels, security position listings and any available listing, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels computer file containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list and security position listings recordholders of Company Common the Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub Parent and Purchaser with such additional informationinformation (including, including but not limited to, updated lists of stockholdersholders of the Shares and their addresses, mailing labels and lists of security position listings, and such other information positions) and assistance as Merger Sub Parent, Purchaser or its their respective agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholdersholders of the Shares. Subject to the requirements of applicable Law, and except Except for such steps as are appropriate necessary to disseminate the Offer Documents Documents, Parent and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors Purchaser shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any of such labelslabels and lists and the additional information referred to in the preceding sentence, listings and fileswill use such information in connection with the Offer, and, if this Agreement shall be is terminated, will promptly upon request of the Company deliver or cause to be delivered to the Company all copies of such information then in their possessionits possession or the possession of its agents or representatives.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Metromail Corp), Merger Agreement (Great Universal Acquisition Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called and held on February 11held, 2002, unanimously has (i) unanimously determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the MergerOffer and the Merger (defined below in Section 2.1), the Stock Option Agreement dated as of the date hereof (the "Stock Option Agreement") and the Shareholder Option Agreement, dated as of the date hereof (the "Shareholder Option Agreement"), among the shareholders of the Company that are named therein and Merger Subsidiary, and the transactions contemplated thereby, are fair to and in the best interest of the Company's shareholders, (Bii) recommend acceptance unanimously approved this Agreement and approval by the Company Stockholders of this Agreementtransactions contemplated hereby, including the Offer, the Merger Merger, the Stock Option Agreement and the other Shareholder Option Agreement and the transactions contemplated hereby and by thereby, which approval satisfies in full the Transaction Documents and that such holders tender their Company Common Shares in requirements of Section 203 of the Offer; General Corporation Law of the State of Delaware (the "Delaware Law"), (iii) took all other action necessary and advisable unanimously resolved to render the Company Rights Agreement inapplicable to the Transaction Documents, recommend acceptance of the Offer and approval and adoption of this Agreement and the MergerMerger by its shareholders, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each determined that the consummation of the transactions contemplated by hereby including the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c)Offering, the Company consents Merger, the Stock Option Agreement and the Shareholder Option Agreement and thereby have not, and will not, cause the Rights, as defined herein, to the inclusion of such recommendations and approvals in the Offer Documentsbecome exercisable. The Company shall not withdrawfurther represents that Advest Investment Banking, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor Inc. ("Advest") has delivered to the Company Company's Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, opinion that the consideration to be received by the Company Stockholders pursuant to this Agreement, paid in the Offer and the Merger is fair to the holders of Shares from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants advised that it has been advised by each of its directors and executive officers that they presently intend either to tender all Company Common their Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees Offer or to file with the SEC, concurrently with the filing by Parent and Merger Sub vote in favor of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)Merger. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders will promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and furnish Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Centris Group Inc), Merger Agreement (HCC Insurance Holdings Inc/De/)
Company Action. (a) The Company hereby approves of of, and consents to to, the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11held, 2002and upon unanimous vote of the directors of the Company, unanimously has (i) unanimously determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are advisable, and are fair to and in the best interests of the Company's shareholders, (Bii) recommend acceptance unanimously approved and approval by the Company Stockholders of adopted this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby (and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable deemed them to render the Company Rights Agreement inapplicable to the Transaction Documentsbe advisable), including the Offer and the Merger, without any payment which approval satisfies in full the requirements of the Business Corporation Act of the State of Florida (the "FLORIDA LAW") (including Sections 607.0901 and 607.0902 thereof) and the Articles of Incorporation and By-laws of the Company with respect to the holders requisite approval of the Rights; Board, and (iviii) took all actions necessary and advisable unanimously resolved to render inapplicable to each recommend acceptance of the transactions contemplated Offer and approval and adoption of this Agreement and the Merger by its shareholders, provided that following receipt of an unsolicited bona fide written Superior Proposal (as defined below), such recommendation may be withdrawn or modified, but only to the extent that the Board of Directors of the Company shall have concluded in good faith on the basis of advice from outside counsel that such action by the Transaction Documents Board of Directors is required in order to comply with the provisions fiduciary duties of any Antitakeover Laws. Subject the Board of Directors to Section 6.4(c), the shareholders of the Company consents to the inclusion of such recommendations and approvals in the Offer Documentsunder applicable law. The Company shall not withdrawfurther represents that Prudential Vector Healthcare Group, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that a unit of Prudential Securities Incorporated (the Independent Advisor "COMPANY'S INVESTMENT BANKER") has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, opinion that the consideration to be received by the Company Stockholders pursuant to this Agreement, paid in the Offer and the Merger is fair to the holders of Shares from a financial point of view view, and the Company has provided a copy of such opinion to such holders (other than Parent and its affiliates)Parent. The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with the filing by will promptly furnish Parent and Merger Sub with a list of its shareholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the Schedule TO with respect most recent practicable date, and will provide to Parent and Merger Sub such additional information (including, without limitation, updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent and Merger Sub may reasonably request in order to be able to communicate the Offer to the Offer, record and beneficial holders of the Shares.
(a) As soon as practicable on the day that the Offer is commenced the Company will file with the SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule SCHEDULE 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) which shall reflect the recommendations and actions of the Company Company's Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)above. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Company, Parent and Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees each agree promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect respect. The Company agrees to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent Parent, Merger Sub and its their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is prior to its being filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffSEC.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Renex Corp), Agreement and Plan of Merger (Renex Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11held, 2002has, unanimously subject to the terms and conditions set forth herein, unanimously, (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to, and (B) recommend acceptance and approval by in the Company Stockholders of this Agreementbest interests of, the Offershareholders of the Company, the Merger (ii) approved this Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment to the holders in all respects and that such approval constitutes approval of the Rights; Offer, this Agreement and the Merger for purposes of Section 251 of the Delaware General Corporation Law (iv) took all actions necessary the "DGCL"), and advisable similar provisions of any other similar state statutes that might be deemed applicable to render inapplicable to each of the transactions contemplated by hereby, and (iii) resolved to recommend that the Transaction Documents shareholders of the provisions of any Antitakeover LawsCompany accept the Offer, tender their Shares thereunder to Merger Sub and approve and adopt this Agreement and the Merger. Subject to Section 6.4(c), the The Company consents to the inclusion of such recommendations recommendation and approvals approval in the Offer Documents; provided, that such recommendation may be withdrawn, modified or amended in accordance with the provisions of Section 5.2. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby further represents and warrants that C.E. ▇▇▇▇▇▇▇▇▇, ▇▇wbin (the Independent Advisor "Financial Advisor") has delivered to the Company Board of Directors its written Fairness Opinion that, subject to opinion that the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the cash consideration to be received by the shareholders of the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair to such shareholders from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Financial Advisor to permit, subject to the prior review and consent of by the Independent Financial Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion fairness opinion (or a reference thereto) in the Offer Documents, the Schedule 14D-9 (as defined belowin Section 1.2(b)) and and, if required, the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferSchedule 13E-3.
(b) The Contemporaneously with the commencement of the Offer as provided in Section 1.1, the Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that containing the recommendation described in Section 1.2(a) and to promptly mail the Schedule 14D-9 to the shareholders of the Company. The Schedule 14D-9 will (i) comply in all material respects with the provisions of all applicable federal securities lawslaws and, (ii) reflect on the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be date filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC date first published, sent or disseminated given to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.shareholders,
Appears in 2 contracts
Sources: Merger Agreement (Kofax Image Products Inc), Merger Agreement (Silver David S)
Company Action. (a) The Company ALARIS hereby approves of and consents to the Offer Offer, and represents and warrants that the Company Board of DirectorsALARIS Board, at a meeting duly called and held on February 11held, 2002has, subject to the terms and conditions set forth in this Agreement, unanimously (i) determined that approved this Agreement, and deemed this Agreement, the Offer, the Merger and the other transactions contemplated herebyby this Agreement advisable, taken together, are at a price and on terms fair to, advisable to and in the best interests of the Company and the Company ALARIS Stockholders; (ii) voted to (A) approve approved this Agreement, the Support Agreement and the transactions contemplated herebyby this Agreement and the Support Agreement, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders in all respects, and such approval constitutes approval of the Rights; Offer, the Merger, this Agreement and (iv) took all actions necessary the Support Agreement and advisable to render inapplicable to each of the transactions contemplated by such agreements for purposes of Section 203 of the Transaction Documents Delaware General Corporation Law (the provisions “DGCL”); and (iii) resolved to recommend that the ALARIS Stockholders accept the Offer, that the ALARIS Stockholders tender their shares of any Antitakeover ALARIS Common Stock under the Offer to Subcorp, and that the ALARIS Stockholders approve and adopt this Agreement and the Merger to the extent required by Applicable Laws. Subject to Section 6.4(c), the Company ALARIS consents to the inclusion of such recommendations approval and approvals recommendation in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company ALARIS hereby agrees to file with the SECCommission, concurrently with as soon as reasonably practicable on the filing by Parent and Merger Sub of day the Schedule TO with respect to the OfferOffer is commenced, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that containing the recommendation described in Section 1.2(a) and to promptly mail the Schedule 14D-9 to the ALARIS Stockholders together with the Offer Documents and use its reasonable best efforts to cause the Offer Documents to be disseminated to the ALARIS Stockholders in accordance in all material respects with the applicable requirements of the United States federal securities laws. Cardinal Health, Subcorp, and their counsel shall be given the opportunity to review and comment on the Schedule 14D-9 sufficiently in advance of its filing with the Commission. ALARIS will (i) use its reasonable best efforts to cause the Schedule 14D-9 to comply in all material respects with the provisions applicable requirements of all applicable the United States federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if information provided and to the extent that it shall become false or misleading in any material respect (be provided by ALARIS, Cardinal Health and Parent and Merger Sub, with respect to information supplied by them specifically Subcorp for use in the Schedule 14D-914D-9 shall not, shall promptly notify on the Company and its counsel of any required corrections of such information and cooperate date filed with the Company with respect Commission and on the date first published or sent or given to correcting such information) and the ALARIS Stockholders, as the case may be, contain any untrue statement of a material fact or omit to supplement the information contained in the Schedule 14D-9 state any material fact required to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (misleading, except that no representation is made by ALARIS with respect to the information supplied in writing by Cardinal Health or Subcorp for inclusion in the Schedule 14D-9. ALARIS will use its reasonable best efforts to comply in all material respects with the applicable requirements of the United States federal securities laws. ALARIS, Cardinal Health and Parent and Merger Sub shall supplement the Subcorp each agree promptly to correct any information provided by them specifically it for use in the Schedule 14D-9 if and to include the extent that it shall have become false or misleading in any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)material respect, and the Company shall ALARIS further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC Commission and disseminated to the Company Stockholders, ALARIS Stockholders to the extent required by the applicable requirements of the United States federal securities laws. Parent Cardinal Health and its counsel Subcorp shall be given a reasonable opportunity promptly furnish to review ALARIS all information concerning Cardinal Health and comment on the Schedule 14D-9 before it Subcorp that is filed required or reasonably requested by ALARIS in connection with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect obligations relating to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffcontained in this Section 1.2(b).
(c) In connection with the Offer, the Company shall promptly, ALARIS promptly will furnish (or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub furnish) Cardinal Health and Subcorp with mailing labels labels, security position listings and any available listing or computer files containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each the ALARIS Stockholders as of a recent date, and shall promptly furnish Merger Sub Subcorp with such additional informationinformation and assistance (including, including without limitation, updated lists of stockholdersthe ALARIS Stockholders, mailing labels and security position listings, and such other information and assistance lists of securities positions) as Merger Sub Subcorp or its agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholdersholders of shares of ALARIS Common Stock. Subject to the requirements of applicable LawExcept as required by Applicable Laws, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate communicate the MergerOffer, Parentthe Merger or the transactions contemplated by this Agreement to the ALARIS Stockholders, Merger Sub Cardinal Health and Subcorp (and their Affiliates, agents and advisors respective representatives) shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver files to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned extent required by the Parent Parties confidentiality agreement between Cardinal Health and ALARIS, dated March 8, 2004 (the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d“Confidentiality Agreement”), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Alaris Medical Systems Inc), Merger Agreement (Cardinal Health Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11March 12, 20022000, unanimously acting by unanimous vote, (i) determined that approved and adopted this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in including the best interests of the Company Offer and the Company StockholdersMerger, and the Voting Agreement; (ii) voted recommended that the holders of Company Common Shares who desire cash for their Shares at this time accept the Offer, tender their Company Common Shares pursuant to (A) the Offer and approve this Agreement and the transactions contemplated hereby, including the Merger, ; and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary determined that this Agreement and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentstransactions contemplated hereby, including the Offer and the Merger, without any payment are advisable, fair to and in the holders best interests of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each stockholders of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferCompany.
(b) The Company hereby agrees to file with the SEC, concurrently with as promptly as practicable after the filing by Parent and Merger Sub Tribune of the Schedule TO with respect to the OfferOffer but in any event on the date such Schedule TO is filed with the SEC, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule SCHEDULE 14D-9") that will (i) will comply in all material respects with the provisions of all applicable federal securities laws, laws and (ii) reflect will include the recommendations and actions opinion of the Company Board of Directors Financial Advisor referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)4.17 hereof. The Company agrees to include mail such Schedule 14D-9 in to the mailing holders of Company Common Shares along with the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees that the Schedule 14D-9 and the Offer Documents shall contain the recommendations of the Company's Board of Directors described in Sections 1.2(a) hereof. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger SubTribune, with respect to information supplied by them it specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub Tribune shall supplement the information provided by them it specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the holders of Company StockholdersCommon Shares, in each case to the extent required by applicable federal securities laws. Parent Tribune and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffSEC.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, promptly following execution of this Agreement furnish Merger Sub Tribune with mailing labels containing the names and addressees of all record holders of Company StockholdersCommon Shares, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub Tribune with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number holders of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actionShares.
Appears in 2 contracts
Sources: Merger Agreement (Stinehart William Jr), Merger Agreement (Stinehart William Jr)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Company’s Board of Directors, at a meeting duly called and held on February 11March 9, 2002, unanimously (i) determined that this Agreement, the Offer, the Merger 2007 has approved and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, declared advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger; (ii) resolved, and (B) subject to Section 5.02, to recommend acceptance and approval by that the stockholders of the Company Stockholders of this Agreement, accept the Offer and tender their Shares pursuant to the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary determined that this Agreement and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentstransactions contemplated hereby, including the Offer and the Merger, without any payment are advisable, fair to, and in the best interests of the stockholders of the Company and that the consideration to be paid for each Share in the Offer and the Merger is fair to the holders of the RightsShares; and (iv) took all actions other action (including all required amendments to the By-Laws of the Company) necessary and advisable to render Sections 3-602 and 3-701 through 3-710 of the MGCL and other state takeover statutes inapplicable to each of the transactions contemplated by the Transaction Documents Offer, the provisions Merger and this Agreement and the transactions contemplated hereby and thereby. Unless the recommendation of any Antitakeover Laws. Subject to Section 6.4(c)the Company’s Board of Directors is withdrawn in accordance with the terms of this Agreement, the Company hereby consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such Documents of the recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that of the Independent Advisor has delivered to the Company Company’s Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to described in this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferSection 1.02.
(b) The Company hereby agrees to shall file with the SEC, concurrently with as promptly as practicable after the filing by Parent and Merger Sub Purchaser of the Schedule TO with respect to the Offer but in any event on the date of commencement of the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that will (i) will comply in all material respects with the provisions of all applicable federal securities lawsLaws, and (ii) reflect unless the recommendation of the Company’s Board of Directors is withdrawn in accordance with Section 6.03, will include the recommendations and actions of the Company Company’s Board of Directors referred to in clause (ii) of Section 1.2(a1.02(a) and the opinion(s) of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Duff & ▇▇▇▇▇▇, LLC (iiicollectively, the “Company Financial Advisors”) include the Fairness Opinion, referred to in each case subject to Section 6.4(c)4.18. The Company agrees to include mail such Schedule 14D-9 in to the mailing holders of Shares. Each of the Offer Documents by Merger Sub to Company, on the Company Stockholders promptly after one hand, and Parent and Purchaser, on the commencement of the Offer. The Company other hand, agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it the Schedule 14D-9 shall become be, or have become, false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)respect, and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplementedcorrected, to be filed with the SEC and disseminated mailed to the Company StockholdersCompany’s stockholders, in each case to the extent required by applicable federal securities lawsLaws. The Company shall provide Parent and its counsel shall be given with a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated and mailed to holders of Shares. In addition, the Company Stockholders. The Company shall agrees to provide Parent and its counsel copies of with any comments, whether written comments and telephone notification of any oral comments or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts , to respond to such comments promptly, and shall provide consult with Parent and its counsel prior to responding to any such comments and to provide Parent with copies of any all such responses, whether written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its stafforal.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly on Parent’s request furnish Merger Sub Parent and Purchaser with mailing labels labels, security position listings, any available non-objecting beneficial owner lists and any available listing or computer list containing the names and addressees addresses of all the record Company Stockholdersholders of the Common Stock as of the most recent practicable date and shall furnish Purchaser with such additional available information (including, a but not limited to, updated lists of holders of Common Stock and their addresses, mailing labels and lists of security positions and non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, owner lists) and such other information and assistance as Merger Sub Parent or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial holders of Shares. The Company Stockholdersrepresents and warrants to Parent and Purchaser that it has been advised that each of its directors and executive officers intends to tender pursuant to the Offer all the Common Stock owned of record and beneficially by him or her except to the extent such tender would violate applicable federal securities laws. Subject to the requirements of applicable Law, and except for such steps as are appropriate necessary to disseminate mail the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidenceconfidence the information contained in such labels, listings and files, shall use only such information solely in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be is terminated in accordance with Section 8.01 or if the Offer is otherwise terminated, will shall promptly deliver or cause to be delivered to the Company all copies of such information information, labels, listings and files then in their possessionpossession or in the possession of their agents or representatives.
(d) Promptly following Provided that this Agreement has not been terminated in accordance with Section 8.01, Parent and Purchaser agree that in the event that the aggregate number of shares of Common Stock validly tendered and not withdrawn by an applicable Offer expiration date when taken together with all shares of Common Stock then owned by Parent, Purchaser and their affiliates (collectively, the “Base Shares”) equal or exceed at least 80% of the shares of Common Stock issued and outstanding immediately prior to the acceptance for payment and payment for Company Common purchase of all Shares by Merger Sub validly tendered pursuant to the Offer, Purchaser shall (and from time to time thereafter, Merger Sub Parent shall be entitled to designate up to such number of directors, rounded up to cause Purchaser to) purchase (the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f“Top-Up Purchase”) of the Exchange Act, representation on the Company Board of Directors at a price per share equal to the product Offer Price up to that number of newly issued shares of the Common Stock (the “Top-Up Shares”) equal to the lowest number of directors shares of Common Stock that, when added to the Base Shares shall constitute a sufficient number of shares of Common Stock to effect a short-form merger under Section 3-106 of the MGCL; provided, that the foregoing percentage may be reduced by the Company in its sole discretion to the extent of available authorized shares. The Top-Up Purchase must be consummated by Purchaser on the Company Board Business Day following the applicable Offer expiration date contemporaneously with the acceptance for payment and purchase of Directors (giving effect to any increase in the number of directors all Shares validly tendered pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which Offer. The parties shall be cooperate to ensure that the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee issuance of the Company Board Top-Up Shares is accomplished consistent with all applicable legal requirements of Directors to include individuals designated by Merger Sub constituting up to all Governmental Entities, including compliance with an applicable exemption from registration of the same percentage Top-Up Shares under the Securities Act of each such committee 1933, as Merger Sub designees constitute on the Company Board of Directorsamended. The Company shallshall promptly issue and deliver to the Purchaser the Top-Up Shares, upon request by Merger Sub, and the Parent or Purchaser shall promptly take all actions necessary to cause Merger Sub's designees to be elected pay to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/orOffer Price for such Top-Up Shares either, at the Company's electionelection of Purchaser, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected (i) in cash by wire transfer or cashier’s check, (ii) by issuance by Purchaser to the Company Board of Directors in accordance with the a promissory note on terms of this Section 1.2(d). In the event that designees of Merger Sub are elected reasonably satisfactory to the Company Board of Directors, until the Effective Time, those continuing members or (iii) by a combination of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub foregoing.
(e) Purchaser shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company (and Parent shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(fcause Purchaser to) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed TO disclosure that is reasonably designed to provide broad, non-discretionary distribution to the Company Stockholders promptly after the commencement public of the Offer (all material nonpublic information provided or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect made available to the Parent or the Purchaser.
(f) The Company and its officers and directors shall take such action as is may be required under Section 14(fto cause the election of those individuals set forth on Company Disclosure Schedule 1.02(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Company’s Board of Directors and prior to the Effective Time, the affirmative vote of a majority effective upon consummation of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actionOffer.
Appears in 2 contracts
Sources: Merger Agreement (Sunterra Corp), Merger Agreement (Diamond Resorts, LLC)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11prior to the execution of this Agreement at which all directors of the Company were present, 2002, the Company Board duly and unanimously adopted resolutions (i) determined declaring that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interests of the Company’s stockholders, (Bii) recommend acceptance approving and approval by the Company Stockholders of declaring advisable this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment in accordance with the requirements of the Delaware Law, and (iii) recommending that the Company’s stockholders accept the Offer and tender their Company Shares to Merger Subsidiary pursuant to the holders Offer and, if applicable, vote in favor of the Rights; and adoption of this Agreement (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c)such recommendation, the “Board Recommendation”). The Company hereby consents to the inclusion of such recommendations the foregoing determinations and approvals in the Offer Documents. The Company Documents and, to the extent that no Adverse Recommendation Change shall not withdraw, modify or fail to reaffirm such recommendations and approvals have occurred in any manner inconsistent accordance with Section 6.4(c7.03(b). The , the Company hereby represents and warrants that the Independent Advisor has delivered consents to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion Board Recommendation in the Offer Documents. As of the date hereof, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each that all of its directors and executive officers that they who own Company Shares intend to tender all their Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer. The Company shall promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Company Shares and lists of securities positions of Company Shares held in stock depositories, in each case true and complete as of the most recent practicable date, and shall provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer.
(b) The As soon as practicable on the day that the Offer is commenced, the Company hereby agrees to shall file with the SECSEC and disseminate to holders of Company Shares, concurrently with the filing by Parent in each case, as and Merger Sub of the Schedule TO with respect to the Offerextent required by applicable U.S. federal securities laws, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that will (i) comply in all material respects with the provisions of all applicable federal securities lawsthat, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c7.03(b), shall reflect the Board Recommendation. The Company agrees to include such Schedule 14D-9 in the mailing Each of the Offer Documents by Parent and Merger Sub Subsidiary shall promptly furnish to the Company Stockholders promptly after in writing all information concerning Parent and Merger Subsidiary that may be required by applicable securities laws or reasonably requested by the commencement Company for inclusion in the Schedule 14D-9. Each of the Offer. The Company Company, Parent and Merger Subsidiary agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect respect. The Company agrees to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the holders of Company StockholdersShares, in each case as and to the extent required by applicable U.S. federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 each time before it is filed with the SEC or disseminated to SEC, and the Company Stockholdersshall give reasonable and good faith consideration to any comments made by Parent, Merger Subsidiary and their counsel. The Company shall provide Parent Parent, Merger Subsidiary and its their counsel copies of with (i) any comments or other communications, whether written comments and telephone notification of any oral comments or oral, that the Company Parent, Merger Subsidiary or its their counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such those comments promptlyor other communications, and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (to which reasonable and good faith consideration shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses be given), including by participating with the Company or its counsel to the SEC in any discussions or its staff.
(c) In connection meetings with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionSEC.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Packeteer Inc), Merger Agreement (Blue Coat Systems Inc)
Company Action. (a) The Company BLP hereby approves of and consents to the Offer Offer, and represents and warrants that the Company Board of DirectorsBLP Board, at a meeting duly called and held on February 11held, 2002has, unanimously subject to the terms and conditions set forth in this Agreement, (i) determined that approved this Agreement, and deems this Agreement, the Offer, the Merger and the other transactions contemplated herebyby this Agreement advisable, taken together, are at a price and on terms fair to, advisable to and in the best interests of the Company and the Company BLP Stockholders; (ii) voted to (A) approve approved this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, including the Offer and the Merger, without any payment to the holders in all respects, and such approval constitutes approval of the Rights; Offer, this Agreement, the Merger and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by this Agreement for purposes of Section 203 of the Transaction Documents Delaware General Corporation Law (the provisions “DGCL”); and (iii) resolved to recommend that the BLP Stockholders accept the Offer, that the BLP Stockholders tender their shares of any Antitakeover BLP Common Stock under the Offer to Subcorp, and that the BLP Stockholders approve and adopt this Agreement and the Merger to the extent required by Applicable Laws. Subject to Section 6.4(c), the Company BLP consents to the inclusion of such recommendations approval and approvals recommendation in the Offer Documents. The Company shall not withdrawBLP further represents that Bear, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor S▇▇▇▇▇▇ & Co. Inc. (“Bear S▇▇▇▇▇▇”) has delivered to the Company BLP Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, opinion that the consideration to be received by the Company BLP Stockholders pursuant to this Agreement, the Offer and the Merger is fair to the BLP Stockholders from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerview.
(b) The Company BLP hereby agrees to file with the SECCommission, concurrently with as soon as reasonably practicable on the filing by Parent and Merger Sub of day the Schedule TO with respect to the OfferOffer is commenced, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that containing the recommendation described in Section 1.2(a) and to promptly mail the Schedule 14D-9 to the BLP Stockholders together with the Offer Documents. Cardinal, Subcorp, and their counsel shall be given the opportunity to review and comment on the Schedule 14D-9 sufficiently in advance of its filing with the Commission. The Schedule 14D-9 will (i) comply in all material respects with the provisions of all applicable United States federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if information provided and to the extent that it shall become false or misleading in any material respect (be provided by BLP, Cardinal and Parent and Merger Sub, with respect to information supplied by them specifically Subcorp for use in the Schedule 14D-914D-9 shall not, shall promptly notify on the Company and its counsel of any required corrections of such information and cooperate date filed with the Company with respect Commission and on the date first published or sent or given to correcting such information) and the BLP Stockholders, as the case may be, contain any untrue statement of a material fact or omit to supplement the information contained in the Schedule 14D-9 state any material fact required to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (misleading. BLP, Cardinal and Parent and Merger Sub shall supplement the Subcorp each agree promptly to correct any information provided by them specifically it for use in the Schedule 14D-9 if and to include the extent that it shall have become false or misleading in any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)material respect, and the Company shall BLP further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC Commission and disseminated to the Company Stockholders, BLP Stockholders to the extent required by applicable United States federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement BLP promptly will furnish Merger Sub Cardinal and Subcorp with mailing labels labels, security position listings and any available listing or computer files containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each the BLP Stockholders as of a recent date, and shall promptly furnish Merger Sub Subcorp with such additional informationinformation and assistance (including, including without limitation, updated lists of stockholdersthe BLP Stockholders, mailing labels and security position listings, and such other information and assistance lists of securities positions) as Merger Sub Subcorp or its agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholders. Subject holders of shares of BLP Common Stock.
(i) BLP hereby grants to Cardinal and Subcorp an irrevocable option (the “Subcorp Option”) to purchase up to that number of newly issued shares of BLP Common Stock (the “Subcorp Option Shares”) equal to the requirements number of applicable Lawshares of BLP Common Stock that, when added to the number of shares of BLP Common Stock owned by Cardinal, Subcorp and except their affiliates immediately following consummation of the Offer, shall constitute one share more than 90% of the shares of BLP Common Stock then outstanding on a fully diluted basis (after giving effect to the issuance of the Subcorp Option Shares) for such steps as are appropriate consideration per Subcorp Option Share equal to disseminate the Per Share Amount.
(ii) The Subcorp Option shall be exercisable only after the purchase of and payment for shares of BLP Common Stock pursuant to the Offer Documents and any other documents necessary to consummate the Mergerby Cardinal or Subcorp as a result of which Cardinal, Parent, Merger Sub Subcorp and their Affiliatesaffiliates own beneficially at least 80% of the outstanding shares of BLP Common Stock. The Subcorp Option shall not be exercisable if the number of shares of BLP Common Stock subject thereto exceeds the number of authorized shares of BLP Common Stock available for issuance.
(iii) In the event Cardinal and Subcorp wish to exercise the Subcorp Option, agents Subcorp shall give BLP one day’s prior written notice specifying the number of shares of BLP Common Stock that are or will be owned by Cardinal, Subcorp and advisors shall hold in confidence, and use only in connection with their affiliates immediately following consummation of the Offer and specifying a place and a time for the Mergerclosing of the purchase. BLP shall, as soon as practicable following receipt of such notice, deliver written notice to Subcorp specifying the number of Subcorp Option Shares. At the closing of the purchase of the Subcorp Option Shares, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to portion of the Company all copies purchase price owing upon exercise of such information then in their possession.
the Subcorp Option which equals the product of (dA) Promptly following the acceptance for payment and payment for Company number of shares of BLP Common Shares by Merger Sub Stock purchased pursuant to the OfferSubcorp Option, and from time to time thereaftermultiplied by (B) the Per Share Amount, Merger Sub shall be entitled paid to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/orBLP, at the Company's electionelection of Cardinal and Subcorp, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates cash (by wire transfer or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(fcashier’s check) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote delivery of a majority of the Independent Directors shall be required promissory note having full recourse to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actionCardinal.
Appears in 2 contracts
Sources: Merger Agreement (Boron Lepore & Associates Inc), Merger Agreement (Cardinal Health Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants to Parent and Merger Sub that (i) the Company Board of DirectorsBoard, at a meeting duly called and held on February 11May 13, 20022001, has unanimously (iA) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including each of the Merger, Offer and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to collectively, the "Transactions"), are fair to, and in the best interests of, the holders of Shares, (B) approved, adopted and declared advisable this Agreement and the Rights; Transactions (such approval and adoption having been made in accordance with the DGCL, including, without limitation, Section 203 thereof assuming that neither Parent nor Merger Sub are Interested Stockholders (as such term is defined in Section 203 of the DGCL with respect to the Transactions)) and (ivC) took all actions necessary resolved to recommend that the holders of Shares accept the Offer and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents tender their Shares pursuant to the inclusion of such recommendations Offer, and approvals in approve and adopt this Agreement and the Offer Documents. The Company shall not withdrawTransactions, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor (ii) Credit Suisse First Boston Corporation ("CSFB") has delivered to the Company Board of Directors its written Fairness Opinion opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinionsuch opinion, the consideration to be received by the Company Stockholders holders of Shares pursuant to this Agreement, each of the Offer and the Merger is fair to the holders of Shares from a financial point of view to such holders (other than Parent and its affiliatesthe "Fairness Opinion"). The Company has been authorized by the Independent Advisor to permit, subject to the prior review assumptions and consent of the Independent Advisor and its counsel (qualifications contained in such consent not opinion. The Company hereby consents to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer DocumentsDocuments of the recommendation of the Board described in the immediately preceding sentence, and neither the Schedule 14D-9 (as defined below) and Board nor the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them shall withdraw or modify such recommendation in any manner adverse to Merger Sub pursuant or Parent except as and to the Offerextent expressly provided in Section 7.4(b).
(b) The Company hereby agrees to file On the date the Offer Documents are filed with the SEC, concurrently the Company shall file with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 containing the Fairness Opinion and, except and to the extent expressly provided in Section 7.4(b), the recommendation of the Board described in Section 2.2(a), and an information statement (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with ), and shall disseminate the provisions of all Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Exchange Act, and any other applicable federal securities laws. Each of Parent, (ii) reflect Merger Sub and the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 correct promptly any information provided by it for use in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it which shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected or supplementedcorrected, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company shall give Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is prior to such document being filed with the SEC or disseminated to the Company Stockholdersholders of Shares. The Company shall provide Parent and its counsel with copies of any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies with a reasonable opportunity to participate in the response of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffsuch comments.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement cooperate with and promptly furnish Parent and Merger Sub with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, in each case that are true and correct as of a the most recent practicable date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and Beneficial Owners of Shares. The Company shall cooperate with and promptly furnish Parent and Merger Sub with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance in disseminating the Offer Documents to holders of Shares, as Parent or Merger Sub or its agents may reasonably request for in connection with the purpose of communicating the Offer to the record and beneficial Company StockholdersOffer. Subject to the requirements of applicable Law, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Parent and Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Transactions, and, if this Agreement shall be terminatedterminated in accordance with Section 9.1, will promptly shall deliver to the Company all copies of such information then in their possessioninformation.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Cable & Wireless PLC), Merger Agreement (Digital Island Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11May 24, 20021999, unanimously has, by the unanimous vote of all directors present and voting, (iA) determined that this Agreement, the Offer, the Merger Agreement and the other transactions contemplated herebythereby, taken togetherincluding the Offer and the Merger, are at a price and on terms fair to, advisable to and in the best interests of the Company holders of the Shares, (B) approved and declared advisable this Agreement and the transactions contemplated hereby and (C) recommended that the stockholders of the Company Stockholders; (ii) voted accept the Offer and tender their Shares pursuant to (A) the Offer and approve and adopt this Agreement and the transactions contemplated hereby. ▇▇▇▇▇▇▇▇▇, including the Merger, and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation (B"DLJ") recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its a written Fairness Opinion that, subject to opinion that the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration Per Share Amount to be received by the Company Stockholders holders of Shares (other than Parent and its subsidiaries) pursuant to this Agreement, the Offer and the Merger is fair to the holders of the Shares from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Advisor to permit, subject hereby consents to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, Documents of the Schedule 14D-9 (as defined below) and recommendations of the Proxy Statement. The Company represents and warrants that it has been advised by each Board described in the first sentence of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerthis Section 1.02(a).
(b) The As soon as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 14D-9, including all exhibits thereto (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with ), containing the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions recommendation of the Company Board of Directors referred to described in Section 1.2(a) 102, and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in disseminate the Schedule 14D-9 to include the extent required by Rule 14d-9 under the Exchange Act of 1934, as amended (the "Exchange Act") and any information that shall become necessary in order to make the statements thereinother applicable Law. The Company, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub Purchaser shall supplement the correct promptly any information provided by any of them specifically for use in the Schedule 14D-9 to include any information that which shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplementedcorrected, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities lawsLaw. Parent and its counsel shall be given a reasonable an opportunity to review and comment on the Schedule 14D-9 before it is (and any amendments thereto) prior to its being filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall provide Parent Parent, Purchaser and its their counsel copies of with any comments or other communications, whether written comments and telephone notification of any oral comments or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffother communications.
(c) In connection with the Offer, the The Company (i) shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares and (ii) shall promptly furnish Merger Sub Purchaser with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent, Purchaser or its their agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionOffer.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Unisource Worldwide Inc), Merger Agreement (Georgia Pacific Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that (i) the Company Board of DirectorsBoard, at a meeting duly called and held on February 11June 16, 20021997, has unanimously (iA) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Mergerincluding, and (B) recommend acceptance and approval by the Company Stockholders without limitation, each of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the MergerMerger (the "Transactions"), without any payment are fair to and in the best interests of the holders of Shares (other than Parent and its subsidiaries), (B) approved and adopted this Agreement and the Rights; Transactions, including for purposes of satisfying the requirements of Section 203(a)(1) of the Delaware Law with respect to the Transactions, (C) taken all action as may be required by the Company's Restated Certificate of Incorporation (the "Restated Certificate") so that Article VIII, Section A.1 of the Restated Certificate is not applicable to the Transactions and, as a result, the supermajority voting requirements of Article VIII, Section A.1 of the Restated Certificate will not apply to this Agreement and the Transactions, (D) to the extent required by that certain letter agreement dated September 1, 1989, as amended January 4, 1993, between the Company and certain of its stockholders, approved the tender by such stockholders of their Shares for purchase pursuant to the Offer and the sale of such Shares in the Merger and (ivE) took all actions necessary and advisable resolved to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion thatrecommend, subject to the various assumptions and qualifications conditions set forth thereinherein, as that the stockholders of the date of Company accept the Fairness OpinionOffer and approve and adopt this Agreement and the Transactions, and (ii) Oppe▇▇▇▇▇▇▇ & ▇o., Inc. ("Oppe▇▇▇▇▇▇▇") ▇as delivered to the Board a written opinion that the consideration to be received by the Company Stockholders holders of Shares pursuant to this Agreement, each of the Offer and the Merger is fair to such holders from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Advisor Oppe▇▇▇▇▇▇▇, ▇▇bject to permit, subject to the prior review and consent of the Independent Advisor and its counsel by such financial advisor, to include such fairness opinion (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion or references thereto) in the Offer Documents, Documents and in the Schedule 14D-9 (as defined belowin paragraph (b) of this Section 1.02) and the Proxy StatementStatement referred to in Section 4.04. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant Subject to the Offerfiduciary duties of the Board under applicable law as advised in writing by independent counsel (which shall, for all purposes under this Agreement, include the Company's regular outside counsel), the Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board described above.
(b) The As soon as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (icontaining, subject to the fiduciary duties of the Board under applicable law as advised in writing by independent counsel, the recommendation of the Board described in Section 1.02(a) comply in all material respects with and shall disseminate the provisions of all Schedule 14D-9 to the extent required by Rule 14D-9 promulgated under the Exchange Act and any other applicable federal securities laws; provided, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinionhowever, in each case subject to Section 6.4(c). The Company agrees to include that such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and recommendation may be withdrawn, modified or changed to the extent that it the Board determines after consultation with independent counsel that such withdrawal, modification or change is consistent with its fiduciary obligations. Any such withdrawal, modification or change shall become false or misleading in any material respect (not constitute a breach of this Agreement, but will nonetheless be subject to the provisions of Sections 8.01 and 8.03. The Company, Parent and Merger Sub, with respect Purchaser agree to information supplied by them specifically for use in the Schedule 14D-9, shall correct promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by any of them specifically for use in the Schedule 14D-9 to include any information that which shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent Parent, Purchaser and its their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed and any amendments thereto prior to the filing thereof with the SEC or disseminated to the Company StockholdersSEC. The Company shall will provide Parent and its Purchaser and their counsel copies with a copy of any written comments and telephone or telephonic notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 Offer Documents promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, thereof and shall will provide Parent and its Purchaser and their counsel copies with a copy of any written responses and telephonic notification of any verbal responses by oral response of the Company or its counsel to the SEC or its staffcounsel.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a the most recent datedate reasonably practicable, together with all other available listings and computer files containing names, addresses and security position listings of record holders and non-objecting beneficial owners of Shares as of the most recent date reasonably practicable. The Company shall promptly furnish Merger Sub Purchaser with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent, Purchaser or its their agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidenceconfidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminatedterminated in accordance with Section 8.01, will shall, at the request of the Company, deliver promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment possession and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase certify in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected writing to the Company Board of Directors in accordance its compliance with the terms of this Section 1.2(d1.02(c), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (McFarland Energy Inc), Merger Agreement (McFarland Energy Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called and held on February 11, 2002, Directors has unanimously (i) approved the Offer and the Merger (as defined in Section 2.1), has determined that this Agreement and the Offer are fair to and in the best interest of the Company and its stockholders and has resolved to recommend acceptance of the Offer to the Company's stockholders, and that the stockholders tender their Shares in the Offer and, if applicable, vote to approve and adopt this Agreement and the Merger, (ii) (x) taken all action necessary to render Section 203 of the Delaware General Corporation Law, and (y) within 5 days of the date hereof, shall have taken all action necessary to render the Company's Rights Agreement, dated as of February 15, 1996, between the Company and The First National Bank of Boston, as rights agent, (the "Rights Agreement"), inapplicable to the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without or any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Lawshereby or thereby. Subject to Section 6.4(c), the The Company hereby consents to the inclusion of such recommendations and approvals in the Offer DocumentsDocuments (as hereinafter defined) of the recommendation of the Board of Directors described in the first sentence of this Section 1.2, except as such consent may be withdrawn by the Board of Directors of the Company in the exercise of its fiduciary duties as set forth in Section 6.6(b) hereof. The Company shall not withdraw, modify or fail represents that it has received the opinion of Hamb▇▇▇▇▇ & Quis▇ ▇▇▇ ("H&Q") to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants the effect that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders offered pursuant to this Agreement, the Offer and the Merger is fair to stockholders of the Company from a financial point of view to view; it being understood and acknowledged that such holders (other than Parent and its affiliates). The Company opinion has been authorized by the Independent Advisor to permit, subject rendered to the prior review and consent Board of Directors of the Independent Advisor Company and its counsel (such consent may not to be unreasonably withheld)relied upon by Parent, the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Purchaser or Merger Sub pursuant to the Offeror their affiliates or their respective stockholders.
(b) The Simultaneously with, or as promptly as possible after, the commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent Commission and Merger Sub of the Schedule TO with respect mail to the Offer, holders of Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws), (ii) which shall reflect the recommendations and actions recommendation of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub Directors; provided that prior to the Company Stockholders promptly after the commencement filing of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the such Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause have provided the Schedule 14D-9, as so corrected or supplemented, to be filed Purchaser's counsel with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written make comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to such Schedule 14D-9. Such recommendation shall not be withdrawn or adversely modified except by resolution of the Schedule 14D-9 promptly after receipt Board of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies Directors adopted in the exercise of any written responses and telephonic notification applicable fiduciary duties upon the advice of any verbal responses by the Company or its counsel to the SEC or its staffcounsel.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub the Purchaser with mailing labels containing the names and addressees addresses of all the record Company Stockholdersholders and, a if available, of non-objecting beneficial owners list of Shares and security position listings lists of Company Common securities positions of Shares held in stock depositories, each as of a the most recent practicable date, and shall promptly from time to time furnish Merger Sub the Purchaser with such additional information, including updated or additional lists of stockholders, mailing labels and security position listingslists of securities positions, and such other information and assistance as Merger Sub or its agents the Purchaser may reasonably request for the purpose of communicating in order to be able to communicate the Offer to the record and beneficial Company Stockholdersstockholders of the Company. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, the Purchaser and the Merger Sub and each 4 of their Affiliates, agents and advisors affiliates shall hold in confidence, and use only in connection with the Offer and the Merger, the treat all information contained in any such labels, listings lists and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such additional information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors "Evaluation Material" in accordance with the terms of this Section 1.2(d)letter agreement dated February 17, including by increasing the size of 1998 between Parent and the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed (the "Independent Directors" for purposes of the provisions of this Confidentiality Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d"). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (WDR Acquisition Corp), Merger Agreement (Wonderware Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants and, to the extent that no Company Change in Recommendation shall have occurred in accordance with Section 6.7, to the inclusion in the Offer Documents of the recommendation of the Company Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously set forth in Section 5.2(b).
(i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors use its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees commercially reasonable efforts to file with the SEC, concurrently on the date the Offer Documents are filed with the filing by Parent and Merger Sub of the Schedule TO with respect to the OfferSEC (but if not so filed, promptly thereafter), a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with any and all amendments, supplements and exhibits theretoas amended or supplemented from time to time, the "“Schedule 14D-9"”), reflecting, subject to the provisions of Section 6.7, the Company Board’s recommendation that the Stockholders accept and tender their Company Shares pursuant to the Offer and the Company Board’s approval of this Agreement, and otherwise reflecting the terms and conditions of this Agreement in all material respects and including the information regarding Parent’s designees to the Company Board pursuant to Section 2.3 to the extent (y) that required therein under Rule 14(f) of the Exchange Act, and (z) Parent shall have theretofore provided the information required by Section 2.3 to the Company a reasonable time prior to such filing.
(ii) The Company shall use its commercially reasonable efforts to disseminate the Schedule 14D-9 and the Proxy Statement to the holders of Company Shares at the times and to the extent required by applicable Law.
(b) The Schedule 14D-9 (including the information regarding Parent’s designees to the Company Board) and the Proxy Statement will (i) comply in all material respects with the provisions of all applicable federal securities lawsLaw and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (misleading, except that no representation or agreement is made by the Company with respect to information supplied by Parent or Merger Sub in writing for inclusion in the Schedule 14D-9 and the Proxy Statement. Each of Parent and Merger Sub shall supplement promptly furnish to the Company all information concerning Parent, Merger Sub and Parent’s designees to the Company Board that is required or reasonably requested by the Company in connection with such actions. The Company, Parent and Merger Sub each agrees promptly to correct any information provided by them specifically it for use in the Schedule 14D-9 and the Proxy Statement if and to include the extent that it shall have become false or misleading in any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)material respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 and the Proxy Statement as so corrected or supplemented, to be filed with the SEC and disseminated to the holders of the Company StockholdersShares, in each case as and to the extent required by applicable federal securities lawsLaw. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed 14D-9, the Proxy Statement and all amendments and supplements thereto prior to filing with the SEC or disseminated to the Company StockholdersSEC. The Company shall further agrees to promptly advise Parent of any comments or other communications (and promptly provide Parent and its counsel copies of any such written comments and telephone notification materials or reasonably detailed summaries of any oral comments communications) that the Company or its counsel or representatives may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt 14D-9, the Proxy Statement or any other securities filings of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel related to the SEC Offer, the Merger or its staffthe transactions contemplated hereby or thereby.
(c) In connection with the OfferOffer and the mailing of the Offer Documents, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement will promptly furnish Parent and Merger Sub with mailing labels labels, security position listings and any available listing or computer files containing the names and addressees addresses of all the record holders of the Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a the most recent date, date practicable and shall promptly furnish Merger Sub with such additional informationinformation and assistance (including, including without limitation, updated lists of stockholdersstockholder lists, mailing labels and security position listings, and such other information and assistance lists of securities positions) as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Law, and except Except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their Affiliatesrespective affiliates, associates, agents and advisors shall hold use the information contained in confidenceany such labels, listings and use files only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the information contained in any such labels, listings terms and filesconditions of the Confidentiality Agreement, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following possession promptly upon the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Healthtronics, Inc.), Merger Agreement (Endocare Inc)
Company Action. (a) The Company hereby approves of and consents to and approves the Offer and represents and warrants that pursuant to the Company Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated . The Company hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company further consents to the inclusion of such recommendations and approvals in the Offer DocumentsDocuments of such approval and of the determination and recommendation of the Company Board described in Section 4.4(b). The Company shall not withdraw, withdraw or modify or fail to reaffirm such recommendations and approvals recommendation in any manner inconsistent with adverse to Purchaser or Parent except as provided in Section 6.4(c7.5(b). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub Purchaser pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently Concurrently with the filing by Parent and Merger Sub of the Schedule TO by Purchaser, the Company shall file with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "“Schedule 14D-9"”) that will (i) containing, except as provided in Section 7.5(b), the recommendation of the Company Board described in Section 4.4(b). The Company shall promptly mail the Schedule 14D-9 to the holders of Company Shares together with the Offer Documents and shall use its reasonable best efforts to cause the Offer Documents to be disseminated in all material respects as required by applicable federal securities laws. The Company shall use its reasonable best efforts to cause the Schedule 14D-9 to comply in all material respects with the provisions applicable requirements of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly Company, Parent and Purchaser agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)respect, and the Company shall take all steps necessary further agrees to use its reasonable best efforts to cause the Schedule 14D-9, as so corrected or supplementedcorrected, to be filed with the SEC and disseminated to the holders of Company StockholdersShares, to the extent in each case in all material respects as required by applicable federal securities laws. Parent or Purchaser shall promptly furnish to the Company all information concerning Parent and Purchaser that is required or reasonably requested by the Company in connection with its obligations relating to the Schedule 14D-9. The Company shall give Parent, Purchaser and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to SEC. In addition, the Company Stockholders. The Company shall agrees to (i) provide Parent Parent, Purchaser and its their counsel copies of in writing with any written comments and telephone notification of any oral comments that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall , (ii) use its commercially reasonable efforts to respond to such comments promptlyprovide Parent, Purchaser and shall provide Parent and its their counsel copies a reasonably detailed description of any written responses and telephonic notification of any verbal responses by oral comments the Company or its counsel may receive from time to time from the SEC or its staffstaff with respect to the Schedule 14D-9 promptly after the receipt of such comments, and (iii) provide Parent, Purchaser and their counsel reasonable opportunity to review and comment on any written or oral response to such comments or any proposed amendment to the Schedule 14D-9 prior to the filing thereof with the SEC.
(c) In connection with the Offer, the Company shall promptly, promptly furnish or cause to be furnished (including by instructing its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with promptly furnish) to Purchaser mailing labels containing the names and addressees addresses of all record holders of Company Stockholders, a non-objecting beneficial owners list Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Company Shares. The Company shall promptly furnish Merger Sub with or cause to be furnished to Purchaser such additional information, including updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance in disseminating the Offer Documents to holders of Company Shares as Merger Sub Parent or its agents Purchaser may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of Law, including applicable Lawstock exchange rules, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidenceconfidence the information contained in such labels, listings and files and shall use such information only in connection with the Transactions. Notwithstanding anything to the contrary in the Confidentiality Agreement or the termination of this Agreement and without limiting, restricting or otherwise impairing the rights of Parent or Purchaser following any termination of this Agreement in accordance with its terms, if Parent and Purchaser elect to continue the Offer (as may be amended in a manner consistent with the terms hereof) notwithstanding the termination of this Agreement by the Company pursuant to Section 9.1(f), Parent and Purchaser shall be permitted to retain and use any and all such information for purposes of disseminating and otherwise communicating the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver related Offer Documents to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment record and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number beneficial holders of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actionShares.
Appears in 2 contracts
Sources: Merger Agreement (Wind River Systems Inc), Merger Agreement (Intel Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11held, 2002has, subject to the terms and conditions set forth herein, unanimously (i) determined that this Agreement, the Offer, the Merger it is fair and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of for Parent to acquire the Company on the terms and subject to the Company Stockholders; (ii) voted to (A) approve conditions set forth herein and approved this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment in all respects and such approval constitutes approval of the Offer, this Agreement and the Merger for purposes of the FBCA, (ii) resolved to recommend that the shareholders of the Company accept the Offer, tender their Shares in the Offer and to the holders extent required, that the shareholders of the Rights; Company approve and adopt this Agreement and the Merger (such recommendation, the “Recommendation”) and (iviii) took taken all other actions necessary to exempt the Offer, the Merger, this Agreement and advisable to render inapplicable to each of the transactions contemplated hereby from any “fair price,” “moratorium,” “control share acquisition,” “interested shareholder,” “business combination,” “affiliated transaction” or other similar statute or regulation promulgated by the Transaction Documents the provisions of any Antitakeover Lawsa Governmental Entity (“Takeover Statute”). Subject to Section 6.4(c), the The Company consents to the inclusion of such recommendations approval and approvals Recommendation in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with SEC on the filing by date that Parent and Merger Sub of file the Schedule TO with respect Offer Documents pursuant to the OfferSection 1.1(b), a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that containing the Recommendation. The Company agrees to use its reasonable best efforts to mail such Schedule 14D-9 to the shareholders of the Company concurrently with the mailing of the Offer Documents. The Schedule 14D-9 will (i) comply in all material respects with the provisions of all applicable federal securities lawslaws and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after Company’s shareholders and at the commencement Acceptance Time, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied by Parent or Merger Sub in writing for inclusion in the Schedule 14D-9. The Company, Parent and Merger Sub shall supplement the each agrees promptly to correct any information provided by them specifically it for use in the Schedule 14D-9 14D-9, if and to include the extent that it shall have become false or misleading in any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), material respect and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, holders of Shares as and to the extent required by applicable federal securities laws. Parent Parent, Merger Sub and its their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including each amendment or supplement thereto) before it is filed with the SEC or disseminated to and the Company Stockholdersshall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel. The In addition, the Company shall provide Parent Parent, Merger Sub and its their counsel with copies of any written comments comments, and telephone notification shall inform them of any oral comments comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments, and any written or oral responses thereto. The Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review any such responses and the Company shall use its commercially give reasonable efforts and good faith consideration to respond any comments made by Parent, Merger Sub and their counsel prior to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its stafftheir submission.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement will promptly furnish Parent and Merger Sub with mailing labels labels, security position listings and any available listing or computer files containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common the Shares held in stock depositories, each as of a recent date, date and shall promptly furnish Merger Sub with such additional informationinformation and assistance (including, including without limitation, updated lists of stockholdersshareholders, mailing labels and security position listings, and such other information and assistance lists of securities positions) as Merger Sub or its agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholdersholders of Shares. Subject to Section 6.2, the requirements of applicable LawCompany shall, and except shall cause its directors, officers, employees and other Representatives to, use their reasonable best efforts to make solicitations and recommendations to the holders of Shares for such steps as are appropriate purposes of causing the Minimum Condition to disseminate be satisfied, including without limitation that upon Parent’s request, the Offer Documents Company, Parent and any other documents necessary to consummate the Merger, Parent, Merger Sub shall promptly prepare a joint presentation to RiskMetrics Group recommending this Agreement and their Affiliatesthe transactions contemplated hereby, agents and advisors shall hold in confidence, and use only in connection with including the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Bankrate Inc), Merger Agreement (Bankrate Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and the Note Tender Offer and represents and warrants that (i) the Company Board of DirectorsBoard, at a meeting duly called and held on February November 11, 20021998, has unanimously (iA) determined that this Agreement, the Offer, the Merger Stock Option Agreement and the other transactions contemplated hereby, taken togetherincluding each of the Offer and the Merger, are at a price and on terms fair to, advisable to and in the best interests of the stockholders of the Company and has declared this Agreement and the transactions contemplated hereby to be advisable, (B) approved and adopted this Agreement, the Stock Option Agreement and the transactions contemplated hereby and thereby, including, without limitation, the Merger, and such approval (the "Section 203 Approval") constitutes approval of the foregoing for purposes of Section 203 of Delaware Law, (C) taken all necessary action to avoid the occurrence of a "Distribution Date" (as defined in the Rights Agreement referred to in Section 2.06) with respect to the Rights, (D) recommended that the stockholders of the Company Stockholders; (ii) voted to (A) accept the Offer and approve and adopt this Agreement and the transactions contemplated hereby, including including, without limitation, the Merger, (E) based on the alternatives considered by the Board at such meeting, expressed its belief, while offering no formal opinion, that acceptance of the Note Tender Offer is preferable to such alternatives, and (BF) recommend acceptance and approval by approved the Company Stockholders of this Agreement, modifications to the Offer, the Merger Notes and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares Indenture as provided for in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction DocumentsConsents, the Offer and the Merger, without any payment to the holders of the Rights; and (ivii) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor Warburg Dillon Read LLC has delivered to the Company Board of Directors its a written Fairness Opinion that, subject opinion to the various assumptions and qualifications set forth thereineffect that, as of the date of the Fairness Opinionsuch opinion, the consideration to be received by the Company Stockholders holders of Shares (other than Parent, Purchaser and their affiliates) pursuant to this Agreement, each of the Offer and the Merger is fair to such holders of Shares from a financial point of view view. Subject only to such holders (other than Parent and its affiliates). The Company has been authorized the fiduciary duties of the Board under applicable law as determined by the Independent Advisor to permitBoard in good faith following consultation with the Company's outside counsel, subject the Company hereby consents to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, Documents of the Schedule 14D-9 (as defined below) and recommendation of the Proxy StatementBoard described in the immediately preceding sentence. The Company represents to Parent and warrants Purchaser that it the Company has been advised by each of its directors and executive officers (which shall consist of the President, each Executive Vice President and any Senior Vice President that beneficially owns in excess of 5,000 Shares) that they intend (i) either to tender or cause to be tendered all Company Common Shares beneficially owned by them to Merger Sub Purchaser pursuant to the Offer or to vote such Shares in favor of the approval and adoption by the stockholders of the Company of this Agreement and the transactions contemplated hereby, and (ii) to tender or cause to be tendered all Notes beneficially owned by them to Purchaser pursuant to the Note Tender Offer, and, with respect to such Notes, to give the Consents solicited pursuant to the Consent Solicitation.
(b) The As soon as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to that it will file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") containing, subject only to the fiduciary duties of the Board under applicable law as determined by the Board in good faith following consultation with the Company's outside counsel, the recommendation of the Board described in Section 1.03(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any other applicable federal securities laws. The Company will take all steps necessary to ensure that the Schedule 14D-9 will (i) comply in all material respects with the provisions of all applicable federal and state securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly Company, Parent and Purchaser agree to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in promptly any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by any of them specifically for use in the Schedule 14D-9 to include any information that which shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule 14D-9 before it is filed and all amendments and supplements thereto prior to their filing with the SEC or disseminated dissemination to stockholders of the Company StockholdersCompany. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to stockholders of the Company. The Company agrees to provide Parent and its counsel with copies of any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments and each of Parent and Purchaser agrees to provide the Company and its counsel with copies of any written comments that Parent, Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent agrees to promptly, following execution of this Agreement promptly furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and shall promptly computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company agrees to furnish Merger Sub Purchaser with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent, Purchaser or its their agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidenceconfidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, Merger and, if this Agreement shall be terminatedterminated in accordance with Section 8.01, will promptly shall deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (HSC Acquisition Corp), Merger Agreement (Hills Stores Co /De/)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that (A) the Company Board of DirectorsDirectors of the Company, at a meeting duly called and held on February 11November 18, 20021998, unanimously (i) determined that at which all of the Directors were present, duly approved by unanimous vote this AgreementAgreement and the transactions contemplated hereby, including the Offer, the Merger and the other transactions contemplated herebyStockholder Agreement, taken together, are at a price and on terms fair to, advisable and in resolved to recommend that the best interests stockholders of the Company accept the Offer, tender their Shares pursuant to the Offer and the Company Stockholders; (ii) voted to (A) approve adopt this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of determined that this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment are fair to and in the holders best interests of the Rights; stockholders of the Company and (ivB) took all actions necessary and advisable to render inapplicable to each of Vector Securities International, Inc. (the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor "Financial Advisor") has delivered to the Company Board of Directors of the Company its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, opinion that as of the date of the Fairness Opinion, hereof the consideration to be received by the stockholders of the Company Stockholders pursuant to this Agreement, each of the Offer and the Merger is fair to the stockholders of the Company from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Financial Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), permit the inclusion of the Fairness Opinion such fairness opinion (or a reference thereto) in the Offer Documents, Documents and in the Schedule 14D-9 (as defined referred to below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant hereby consents to the Offerinclusion in the Offer Documents of the recommendations of the Company's Board of Directors described in this Section 1.2(a).
(b) The Company hereby agrees to shall file with the SEC, concurrently with no later than the filing by Parent and Merger Sub fifth business day following the public announcement of the Schedule TO with respect to the Offerthis Agreement, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) shall comply in all material respects with the provisions of all applicable Law (as hereinafter defined), including federal securities laws, (ii) reflect . The Company shall mail such Schedule 14D-9 to the recommendations and actions stockholders of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the OfferOffer together with the initial mailing of the Offer Documents. The Schedule 14D-9 and the Offer Documents shall contain the recommendations of the Board of Directors of the Company described in Section 1.2(a) hereof. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and each of Parent and Merger Sub, with respect to written information supplied by them it specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, Company's stockholders to the extent required by applicable Laws, including federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to SEC. In addition, the Company Stockholders. The Company shall agrees to provide Parent Parent, Merger Sub and its their counsel copies of in writing with any written comments and telephone notification of any oral comments or other communications that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffother communications.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following promptly upon execution of this Agreement furnish Merger Sub Parent with mailing labels containing the names and addressees addresses of all record Company Stockholdersholders of Shares, a non-objecting beneficial owners list and owner lists (to the extent reasonably available), security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub Parent with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements holders of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionShares.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Em Industries Inc), Merger Agreement (Cn Biosciences Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously (i) The Special Committee and the Board each has adopted resolutions in which it has determined that this Agreement, the OfferTransactions, the Merger and the other transactions contemplated hereby, taken together, by this Agreement are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; its stockholders, (ii) voted to (A) the Special Committee recommended that the Board approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger Transactions and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; this Agreement, (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction DocumentsBoard approved this Agreement, the Offer Transactions and the Mergerother transactions contemplated by this Agreement, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion thatBoard, subject to Sections 8.1(f), 8.1(g) and 8.1(h), determined to recommend that the various assumptions and qualifications set forth thereinCompany’s stockholders tender their shares of Common Stock in response to the Tender Offer. However, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to notwithstanding anything contained in this paragraph (a) or elsewhere in this Agreement, if the Offer Special Committee or the Board, after consultation with counsel, determines in good faith to withdraw or modify the recommendation, because the failure to do so could reasonably be expected to be inconsistent with the duties of the members of the Special Committee or of the members of the entire Board under applicable law, then the Special Committee and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferBoard may withdraw or modify their respective recommendations accordingly.
(b) The Company hereby agrees to will file with the SEC, concurrently with promptly after Acquisition files the filing by Parent and Merger Sub of the Schedule TO with respect to the OfferOffer TO, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits theretoamendments or supplements, the "“Schedule 14D-9"”) that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect containing the recommendations and actions of the Company Board of Directors referred to described in Section 1.2(asubparagraph (a) and (iii) include will disseminate the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in to holders of shares of Common Stock as and to the mailing of extent required by Rule 14d-9 under the Offer Documents by Merger Sub Exchange Act. Parent and Acquisition shall promptly furnish to the Company Stockholders promptly after in writing any information concerning Parent and Acquisition that may be required by applicable Law for inclusion in the commencement of the OfferSchedule 14D-9. The Company agrees Company, on the one hand, and Parent and Acquisition, on the other hand, each will promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall become false such information is or misleading becomes incomplete or inaccurate in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the will file any corrected Schedule 14D-9, as so corrected or supplemented, to be filed 14D-9 with the SEC and disseminated disseminate the corrected Schedule 14D-9 to the Company Stockholders, Company’s stockholders to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with Exchange Act or the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffrules under it.
(c) In connection with the Tender Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement will promptly furnish Merger Sub Acquisition with mailing labels labels, security position listings and any other available listing or computer files containing the names and addressees addresses of all the record Company Stockholdersholders or, a non-objecting to the extent known to the Company, beneficial owners list and security position listings of Company shares of Common Shares held in stock depositories, each Stock as of a recent date, date and shall promptly the Company will furnish Merger Sub Acquisition with such additional informationinformation and assistance (including, including without limitation, updated lists of stockholders, mailing labels and security position listings, and such other information and assistance lists of securities positions) as Merger Sub Acquisition or its agents representatives may reasonably request for in order to communicate the purpose of communicating the Tender Offer to the record holders and beneficial Company Stockholdersowners of Common Stock. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall Acquisition will hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and or files, and, if this Agreement shall be terminated, and will promptly deliver to the Company all copies of such use that information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company only in connection with the transactions contemplated by Tender Offer and the Merger. If this AgreementAgreement is terminated before Acquisition accepts tendered shares, Acquisition will return to the Company the originals and such affirmative majority vote shall be sufficient to take any such actionall copies of that information which are in Acquisition’s possession or control.
Appears in 2 contracts
Sources: Merger Agreement (Javelin Mortgage Investment Corp.), Agreement and Plan of Merger (Armour Residential REIT, Inc.)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company that: (i) its Board of Directors, at a meeting duly called and held on February 11May 15, 20021998, has unanimously (iA) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are advisable and are fair to and in the best interests of the holders of Shares, (B) recommend acceptance and approval by the Company Stockholders of approved this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including each of the Offer and the Merger, without any payment and (C) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser thereunder and adopt this Agreement; provided, however, that prior to the holders consummation of the RightsOffer, if the Company's Board of Directors by majority vote shall have determined in good faith, based upon the advice of outside counsel to the Company, that failure to modify or withdraw its recommendation would constitute a breach of the Board's fiduciary duty under applicable law, the Board of Directors may so modify or withdraw its recommendation; and (ivii) took all actions necessary and advisable to render inapplicable to each of ▇▇▇▇▇▇▇, Sachs & Co. (the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor "Financial Adviser") has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, Company its opinion that the consideration to be received by the Company Stockholders holders of Shares, other than Parent and Purchaser, pursuant to this Agreement, each of the Offer and the Merger is fair to such holders from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Advisor Financial Adviser to permit, subject to the prior review and consent of the Independent Advisor and its counsel (by such consent not to be unreasonably withheld)Financial Adviser, the inclusion of such fairness opinion (or a reference thereto) in the Fairness Opinion Schedule 14D-9 referred to below and the Proxy Statement referred to in Section 3.12. The Company hereby consents to the inclusion in the Offer Documents, Documents of the Schedule 14D-9 (as defined below) and recommendations of the Proxy Statement. The Company represents and warrants that it has been advised by each Company's Board of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferDirectors described in this Section 1.2(a).
(b) The Company hereby agrees to shall file with the SEC, concurrently contemporaneously with the filing by Parent and Merger Sub commencement of the Schedule TO with respect Offer pursuant to the OfferSection 1.1, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-914D- 9"), containing the recommendations of the Company's Board of Directors described in Section 1.2(a)(i) that and shall promptly mail the Schedule 14D-9 to the stockholders of the Company. The Schedule 14D-9 and all amendments thereto will (i) comply in all material respects with the provisions Securities Exchange Act of all applicable federal securities laws1934, as amended (ii) reflect the recommendations "Exchange Act"), and actions of the Company Board of Directors referred to in Section 1.2(a) rules and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)regulations promulgated thereunder. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company Company, Parent and Purchaser each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, if requested by Purchaser, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Purchaser with mailing labels labels, security position listings, any non-objecting beneficial owner lists and any available listings or computer files containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common Shares held in stock depositoriesShares, each as of a recent date, and shall promptly furnish Merger Sub Purchaser with such additional information, information (including but not limited to updated lists of stockholders, mailing labels and labels, security position listings, listings and non-objecting beneficial owner lists) and such other information and assistance as Merger Sub Parent, Purchaser or its their agents may reasonably request for the purpose of require in communicating the Offer to the record and beneficial Company Stockholdersholders of Shares. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, Parent and each of its affiliates and associates shall hold in confidence the information contained in any of such labelslists, listings and files, labels or additional information and, if this Agreement shall be is terminated, will shall promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Dillard Department Stores Inc), Merger Agreement (Mercantile Stores Co Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer Offer, and represents and warrants that the Company Board of DirectorsDirectors of the Company, at a meeting duly called and held on February 11held, 2002has, subject to the terms and conditions set forth in this Agreement, unanimously (i) determined that approved this Agreement and deemed this Agreement, the Offer, the Merger and the other transactions contemplated herebyby this Agreement advisable, taken together, are at a price and on terms fair to, advisable to and in the best interests of the Company and the Company StockholdersShareholders; (ii) voted to (A) approve approved and adopted this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, including the Offer and the Merger, without any payment to the holders in all respects, and such approval and adoption constitutes approval and adoption of the RightsOffer, the Merger, this Agreement and the transactions contemplated by this Agreement for purposes of Part 1 of Article 11 of the GBCC; (iii) taken all other action necessary to render Part 3 of Article 11 of the GBCC, if applicable, and the Company Rights inapplicable to each of the Offer and the Merger; and (iv) took all actions necessary resolved to recommend that the Company Shareholders accept the Offer, that the Company Shareholders tender their shares of Company Common Stock in the Offer to Merger Sub, and advisable that the Company Shareholders approve and adopt this Agreement and the Merger to render inapplicable to each of the transactions contemplated extent required by applicable Law (the Transaction Documents the provisions of any Antitakeover Laws“Company Recommendation”). Subject to Section 6.4(c), the The Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion Recommendation in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend subject to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferSection 5.02.
(b) The Company hereby agrees to file with the SEC, concurrently with as promptly as practicable on the filing by Parent and Merger Sub of day that the Schedule TO with respect to the OfferOffer is commenced, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that will contains the Company Recommendation and to promptly mail the Schedule 14D-9 to the Company Shareholders together with the Offer Documents and cause the Offer Documents and the Schedule 14D-9 to be disseminated to the Company Shareholders, in each case as and to the extent required by, and in accordance with the applicable requirements of the U.S. federal securities Laws. Parent, Merger Sub and their counsel shall be given reasonable opportunity to review and comment on the Schedule 14D-9 and any amendments thereto in advance of their filing with the SEC or dissemination to the Company Shareholders and the Company shall (i) provide Parent, Merger Sub and their counsels with a copy of any written comments or telephonic notification of any oral comments the Company may receive from the SEC or the Staff with respect to the Offer as promptly as practicable after the receipt thereof, (ii) consult in good faith with Parent, Merger Sub and their counsels prior to responding to any such comments, and (iii) provide Parent, Merger Sub and their counsels with a copy of any written responses thereto and telephonic notification of any oral responses thereto made by the Company or its counsel. The Schedule 14D-9 shall comply in all material respects with the provisions of all applicable U.S. federal securities lawsLaws and, (ii) reflect on the recommendations date first filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after Shareholders and on the commencement Acceptance Date, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no covenant, agreement, representation or warranty is made by the Company with respect to information supplied by Parent or Merger Sub for inclusion or incorporation by reference in the Schedule 14D-9. The Company, Parent and Merger Sub shall supplement the each agrees promptly to correct any information provided by them specifically it for use in the Schedule 14D-9 if and to include the extent that it shall have become false or misleading in any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)material respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, Shareholders to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffLaw.
(c) In connection with the OfferOffer and the Merger, the Company shall promptly, promptly will furnish (or cause its transfer agent to promptly, following execution of this Agreement furnish furnish) Parent and Merger Sub with mailing labels labels, security position listings, non-objecting beneficial owner lists and any available listing or computer files containing the names and addressees addresses of all record the Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositoriesShareholders, each as of a the most recent practicable date, and shall promptly furnish Merger Sub with such additional information, information and assistance (including but not limited to updated lists of stockholdersthe Company Shareholders, mailing labels and security position listings, lists of securities positions and such other information and assistance non-objecting beneficial owner lists) as Merger Sub or its agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial holders of shares of Company StockholdersCommon Stock. Subject to the requirements of Except as required by applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate communicate the MergerOffer, Parentthe Merger or the transactions contemplated by this Agreement to the Company Shareholders, Parent and Merger Sub (and their Affiliates, agents and advisors respective representatives) shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, shall use such information solely in connection with the Offer and the Merger, and, if this Agreement shall be is terminated or the Offer is otherwise terminated, will promptly deliver to the Company all copies of such information information, labels, listings and files then in their possession.
(d) Promptly The Company hereby grants to Parent and Merger Sub an irrevocable option (the “Merger Option”) to purchase up to that number of newly issued shares of Company Common Stock (the “Merger Option Shares”) equal to the number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Parent and Merger Sub immediately following consummation of the acceptance Offer, shall constitute one share more than 90% of the shares of Company Common Stock then outstanding on a fully diluted basis (after giving effect to the issuance of the Merger Option Shares) for payment consideration per Merger Option Share equal to the Offer Price; provided that, the Company shall only be required to issue up to that number of Merger Option Shares that would not require a vote of the Company Shareholders to authorize additional shares of capital stock under the Company’s Articles.
(e) The Merger Option shall be exercisable only after the purchase of and payment for shares of Company Common Shares by Merger Sub Stock pursuant to the OfferOffer by Parent or Merger Sub; provided that, and following the issuance of shares of Company Common Stock pursuant to the Merger Option Parent shall cause the Company to delist shares of Company Common Stock from time the NASDAQ Stock Market (“NASDAQ”) as soon as practicable.
(f) In the event that Parent or Merger Sub wish to time thereafterexercise the Merger Option, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on give the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(ftwo (2) of the Exchange Act, representation on the Company Board of Directors equal to the product of Business Day’s prior written notice specifying the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number shares of Company Common Shares beneficially Stock that are or will be owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee Sub immediately following consummation of the Company Board Offer and specifying a place and a time for the closing of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directorspurchase. The Company shall, as soon as practicable following receipt of such notice, deliver written notice to Merger Sub specifying the number of Merger Option Shares. At the closing of the purchase of the Merger Option Shares, the portion of the purchase price owing upon request exercise of the Merger Option that equals the product of (i) the number of shares of Company Common Stock purchased pursuant to the Merger Option, multiplied by (ii) the Offer Price, shall be paid to the Company, at the election of Parent and Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected in cash (by wire transfer or cashier’s check) or by delivery of a promissory note with a market interest rate, with interest and principal payable solely on the one (1) year maturity of the note, in form reasonably acceptable to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Independent Incumbent Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject having full recourse to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actionParent.
Appears in 2 contracts
Sources: Merger Agreement (Darden Restaurants Inc), Merger Agreement (Rare Hospitality International Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously the Board of Directors of the Company has (i) approved and adopted this Agreement and the transactions contemplated hereby and determined that this Agreement, the Offer, Offer and the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; its stockholders and on terms that are fair to such stockholders, and (ii) voted to (A) recommended that the Company's stockholders accept the Offer and tender all of their Shares and associated Rights in connection therewith and, if required under the DGCL, approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company its Board of Directors its has received the written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as opinion of the date of the Fairness Opinion, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation that the consideration to be received by the Company Stockholders Company's stockholders pursuant to this Agreement, each of the Offer and the Merger is fair to the Company's stockholders from a financial point of view to view, and that a complete and correct signed copy of such holders (other than Parent and its affiliates). The Company has been authorized opinion will be delivered promptly following the date hereof by the Independent Advisor Company to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferParent.
(b) The As soon as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with any such Schedule 14D-9, as amended and all amendments, supplements and exhibits theretosupplemented from time to time, the "Schedule 14D-9") and shall mail -------------- the Schedule 14D-9 to the stockholders of the Company. Subject to the fiduciary duties of the Board of Directors as advised by counsel, the Offer Documents and the Schedule 14D-9 shall contain the recommendation of the Company's Board of Directors described in Section 1.2(a). ------------- The Company agrees that will (i) the Schedule 14D-9 shall comply as to form in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions requirements of the Company Board of Directors referred to in Section 1.2(a) Exchange Act and (iii) include the Fairness Opinionrules and regulations promulgated thereunder and, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in on the mailing of date filed with the Offer Documents by Merger Sub SEC and on the date first published, sent or given to the Company Stockholders promptly after the commencement Company's stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied by Parent or the Purchaser or any of their respective representatives which is included in the Schedule 14D-9. Each of the Company, Parent and Merger Sub shall supplement the Purchaser agrees to correct promptly any information provided by them specifically it for use in the Schedule 14D-9 if and to include any the extent that such information that shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9, 14D-9 as so corrected amended or supplemented, supplemented to be filed with the SEC and disseminated to the Company StockholdersCompany's stockholders, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed and all amendments and supplements thereto prior to their filing with the SEC or disseminated dissemination to stockholders of the Company StockholdersCompany. The Company shall agrees to provide Parent and its counsel copies of with any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub the Purchaser or its designee promptly with mailing labels containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common Shares held in stock depositories, each Stock as of a recent date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall promptly furnish Merger Sub with to the Purchaser such additional information, information and assistance (including updated lists of stockholders, mailing labels and security position listings, listings and such other information and assistance computer files) as Merger Sub or its agents the Purchaser may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company StockholdersCompany's stockholders. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and the Purchaser and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, will use such information only in connection with the Offer and the other transactions contemplated hereby and, if this Agreement shall be terminated, will promptly deliver deliver, and will use their reasonable efforts to cause their agents to deliver, to the Company all copies of such information then in their possessionpossession or control.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Kaplan Inc), Merger Agreement (Kaplan Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously (i) determined that this Agreement, In connection with the Offer, the Merger Company -------------- shall cause its transfer agent as promptly as reasonably possible to furnish the Purchaser with mailing labels, security position listings and any available listings or computer files containing the other transactions contemplated herebynames and addresses of record holders of the Shares as of a recent date, taken togetherand shall furnish the Purchaser with such additional information (including, are at a price and on terms fair but not limited to, advisable updated lists of holders of Company Common Stock and their addresses, mailing labels and lists of security positions) and offer such other assistance as the Parent or the Purchaser may reasonably request in communicating the best interests Offer to the Company's stockholders. The information contained in any such labels, listings and files shall be used solely for the purpose of communicating the Offer or disseminating any other documents necessary to consummate the Merger as contemplated by the Offer and shall otherwise be subject to the Confidentiality Agreement, dated November 15, 1999, between the Company and the Company Stockholders; Parent (ii) voted to (A) approve the "Confidentiality Agreement"). If this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreementshall be terminated, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered Purchaser will deliver to the Company Board all copies of Directors information provided to it hereunder that remain in its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to possession at such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offertime.
(b) The Company hereby agrees consents to file the Offer and the Merger, and represents and warrants to the Parent and the Purchaser that (i) the Board of - Directors of the Company (at a meeting duly called and held at which a quorum was present) as part of its approval of this Agreement has unanimously (1) - approved the Offer and the Merger, (2) determined that each of the Offer and the - Merger is advisable, fair to and in the best interests of the stockholders of the Company and (3) resolved to recommend acceptance of the Offer and approval - and adoption of this Agreement by the stockholders of the Company and (ii) -- Credit Suisse First Boston Incorporated ("CSFB") has delivered to the Board of Directors of the Company its opinion that the consideration to be received by the holders of Company Common Stock pursuant to the Offer and the Merger is fair to the holders of Company Common Stock from a financial point of view, subject to the assumptions and qualifications contained in such opinion. Concurrently with the SEC, concurrently with the filing by Parent and Merger Sub commencement of the Schedule TO with respect to the Offer, the Company shall file a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, and including all amendments, supplements and exhibits theretoexhibits, the "Schedule 14D-9") that will with respect to the Offer which shall contain (isubject to the conditions specified in Section 6.8(d)) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(aclause (i) and (iii) include of the Fairness Opinion, in each case subject to Section 6.4(c)preceding sentence. The Company agrees to include such Schedule 14D-9 in the mailing Board of Directors of the Offer Documents by Merger Sub to Company will not withdraw, modify or amend such recommendations, unless the Company Stockholders promptly after the commencement of the Offerconditions specified in Section 6.8(d) have been satisfied. The Company agrees promptly to correct Parent, the Schedule 14D-9 if Purchaser and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its their counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall will be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed and all amendments or supplements thereto prior to their filing with the SEC or disseminated dissemination to the Company Stockholdersholders of Shares. The Company shall provide furnish to the Parent and its counsel copies the Purchaser a copy of any written comments and telephone notification of any oral comments that the Company or its counsel receive from resolutions referred to in the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution first sentence of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
subsection (d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(db), including certified by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf appropriate officer of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Prudential Mortgage Capital Co LLC), Merger Agreement (Prudential Mortgage Capital Co LLC)
Company Action. (a) The Company hereby approves of and consents to the Offer and the other transactions contemplated by this Agreement and the Tender and Voting Agreements and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously (i) determined that prior to the execution of this Agreement, the Offer, the Merger Company Board duly and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; unanimously adopted resolutions (iii) voted to (A) approve declaring that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interests of the Company’s shareholders, (Bii) recommend acceptance approving and approval by the Company Stockholders of declaring advisable this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment (iii) recommending that the Company’s shareholders accept the Offer, tender their Shares to Merger Sub pursuant to the Offer and, to the extent required to consummate the Merger, adopt this Agreement (such recommendations, the “Board Recommendation”), (iv) directing that the adoption of this Agreement be submitted, as promptly as practicable upon consummation of the Offer, to any shareholders of the Company if required to consummate the Merger in accordance with the Business Corporation Law and (v) taking all other actions (to the extent such actions are to be taken by the Company) necessary to irrevocably exempt the Offer, the Merger, this Agreement, the Tender and Voting Agreements and all other transactions contemplated hereby and thereby from the restrictions imposed by any applicable “fair price,” “moratorium,” “control share acquisition,” “interested stockholder,” “business combination” or similar statute or regulation promulgated by a Governmental Entity, including the provisions of Sections 2538 through 2588 of the Business Corporation Law and the provisions of the Pennsylvania Takeover Disclosure Law (70 P.S. Section 71 et seq.) (collectively, “Takeover Laws”) (such actions by the Company Board described in clauses (i) through (v), collectively, the “Board Actions”).
(b) The Company shall, or shall cause its transfer agent, promptly after the Agreement Date and from time to time thereafter as reasonably requested by Parent or its agents, furnish Parent with an updated list of its shareholders, non-objecting beneficial owners, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case as of the Rights; most recent practicable date, and shall provide to Parent such additional information (including updated lists of shareholders, non-objecting beneficial holders, mailing labels, lists of securities positions and all other information in the Company’s possession or control regarding the beneficial owners of Company Common Stock) and such assistance as Parent may reasonably request in connection with the Offer. In addition, in connection with the Offer, the Company shall, and shall use its reasonable best efforts to cause any third parties to, cooperate with Parent and Merger Sub to disseminate the Offer Documents to holders of Shares held in or subject to any Company Stock Plan or other Company Benefit Plan, and to permit such holders of Shares to tender Shares in the Offer.
(c) As promptly as practicable on the date the Schedule TO is filed with the SEC, the Company shall file with the SEC and disseminate to holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with any amendments or supplements thereto and including any exhibits thereto, the “Schedule 14D-9”) that (i) shall reflect the material terms and conditions of this Agreement, (ii) shall include a description of the Board Actions, (iii) shall include the Fairness Opinion and the information with respect to such opinion required to be disclosed by Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether such item is applicable) and (iv) took all actions necessary and advisable to render inapplicable the extent that no Adverse Recommendation Change shall have occurred in accordance with Section 5.02(d) or Section 5.02(e), shall reflect the Board Recommendation. The Company also hereby consents to each the inclusion of (i) a description of the transactions contemplated by Board Actions and the Transaction Fairness Opinion in the Offer Documents and (ii) to the provisions of any Antitakeover Laws. Subject to extent that no Adverse Recommendation Change shall have occurred in accordance with Section 6.4(c5.02(d) or Section 5.02(e), the Company consents to the inclusion of such recommendations and approvals the Board Recommendation in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as Each of the date of the Fairness OpinionCompany, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with shall promptly correct any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply information provided by it for use in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect respect. The Company agrees to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case as, and to the extent extent, required by applicable federal securities lawsLaw. Parent Parent, Merger Sub and its their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated SEC, and the Company shall give due consideration to the Company Stockholdersreasonable additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel. The Company shall promptly provide Parent Parent, Merger Sub and its their counsel with copies of any written comments or communications, and telephone notification shall inform them of any oral comments or communications, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such commentsthose comments or other communications. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors counsel shall hold in confidence, and use only in connection with the Offer be given a reasonable opportunity to review any such written responses and the Merger, the information contained in any such labels, listings and files, and, if this Agreement Company shall be terminated, will promptly deliver give due consideration to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares reasonable additions, deletions or changes suggested thereto by Merger Sub pursuant to the Offer, and from time to time thereafterParent, Merger Sub shall be entitled and their counsel. The Company, Parent and Merger Sub agree to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) disseminate all of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties Offer Documents and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after holders of Shares together in the commencement same mailing or other form of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actiondistribution.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Orthovita Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c6.05(c), the Company (i) hereby consents to the inclusion of such recommendations and approvals in the Offer Documents. The Documents of the recommendation of the Company Board described in Section 3.04 and (ii) shall not withdraw, withdraw or modify or fail to reaffirm such recommendations and approvals recommendation in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered adverse to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates)Purchaser or Parent. The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub Purchaser pursuant to the OfferOffer and, if applicable, their respective Stockholder Support Agreements.
(b) The On the date of commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will ), which shall (i) comply in all material respects with the provisions of the Exchange Act, the rules and regulations thereunder and all other applicable Laws and (ii) contain the Fairness Opinion and, except as provided in Section 6.05(c), the recommendation of the Company Board described in Section 3.04. The Company shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Exchange Act, and any other applicable federal securities laws, (ii) reflect the recommendations and actions . Each of the Company Board of Directors referred to in Section 1.2(a) Company, Parent and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company Purchaser agrees to include such Schedule 14D-9 correct promptly any information provided by it for use in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected or supplementedcorrected, to be filed timely with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company shall give Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is prior to such document being filed with the SEC or disseminated to the Company Stockholdersholders of Shares. The Company shall provide Parent and its counsel copies of with any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies with a reasonable opportunity to participate in the response of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffsuch comments.
(c) In connection with the Offer, the The Company shall promptlypromptly furnish, or cause its transfer agent to promptlyfurnish, following execution of this Agreement furnish Merger Sub Parent and Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other reasonably available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company shall promptly furnish Merger Sub furnish, or cause its transfer agent to furnish, Parent and Purchaser with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information assistance in disseminating the Offer Documents and assistance any Schedule 13E-3 to holders of Shares as Merger Sub Parent or its agents Purchaser may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Law, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Transactions, and, if this Agreement shall be terminatedterminated in accordance with Section 8.01, will promptly shall deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Baycorp Holdings LTD), Agreement and Plan of Merger (Baycorp Holdings LTD)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called Directors has adopted and held on February 11, 2002, unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve approved this Agreement and the transactions contemplated hereby, hereby including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; has determined that this Agreement and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, including the Offer and the Merger are advisable, fair to and in the best interest of the Company and its stockholders, and has resolved (subject to Section 5.2) to recommend acceptance of the Offer to the Company's stockholders, and to recommend that the Company's stockholders tender their Shares in the Offer and vote to approve and adopt this Agreement and the Merger. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section 1.2(a), except as such consent may be withdrawn by the Board of Directors of the Company in accordance with Section 5.2 hereof. The Company represents that it has received the opinion (the "Fairness Opinion") of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ("Company Financial Advisor") to the effect that the consideration offered pursuant to the Offer and Merger is fair to stockholders of the Company from a financial point of view to view; it being understood and acknowledged that such holders (other than Parent and its affiliates). The Company opinion has been authorized by the Independent Advisor to permit, subject rendered to the prior review and consent Board of Directors of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferCompany.
(b) The Company hereby agrees to file On the date the Offer Documents are filed with the SEC, concurrently the Company shall file with the filing by Parent SEC and Merger Sub of the Schedule TO with respect mail to the Offer, holders of Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 14D-9, as amended and supplemented (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws), (ii) which shall reflect the recommendations and actions recommendation of the Company Board of Directors referred that the Company's stockholders accept the Offer and, if applicable, vote to in Section 1.2(a) approve and (iii) include adopt this Agreement and the Fairness OpinionMerger; provided that prior to the filing of such Schedule 14D-9, in each case subject the Company shall have provided Merger Sub's counsel with a reasonable opportunity to Section 6.4(c). The Company agrees review and make comments with respect to include such Schedule 14D-9 in the mailing of the Offer Documents provided that no representation is made by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them the Parent or Merger Sub specifically for use inclusion in the Schedule 14D-9, . Such recommendation shall promptly notify the Company and its counsel of any required corrections of such information and cooperate not be withdrawn or adversely modified except in accordance with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company StockholdersSection 5.2 hereof. The Company shall agrees to provide Parent and its counsel copies of with any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt thereof. Each of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptlythe Company, and shall provide Parent and its counsel copies of Merger Sub shall promptly correct any written responses information provided by it for use in the Schedule 14D-9 that shall have become false or misleading in any material respect and telephonic notification of any verbal responses by the Company or its counsel further agrees to take all steps necessary to cause such Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to the SEC or its staffstockholders of the Company, in each case as and to the extent required by applicable federal securities laws.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Parent and Merger Sub with mailing labels containing the names and addressees addresses of all record Company Stockholdersthe holders of Shares and, a if available, of non-objecting beneficial owners list of Shares and security position listings lists of Company Common securities positions of Shares held in stock depositories, each as of a the most recent practicable date, and shall promptly from time to time furnish Parent and Merger Sub with such additional information, including updated or additional lists of stockholders, mailing labels and security position listingslists of securities positions, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating in order to be able to communicate the Offer to all stockholders of the record and beneficial Company Stockholdersincluding those stockholders who become stockholders after the date of the mailing of the Offer Documents. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Parent and Merger Sub shall, and shall cause each of their Affiliatesaffiliates to, agents hold the information contained in any of such labels and advisors shall hold lists in confidence, and use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be is terminated, will promptly deliver to the Company all copies of such information or extracts therefrom then in their possessionpossession or under their control.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Air Express International Corp /De/), Tender Offer and Merger Agreement (Dp Acquisition Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents that (i) the Independent Directors Committee has unanimously approved and warrants that recommended this Agreement (including all terms and conditions set forth herein) and the Transactions, (ii) the Company Board of DirectorsBoard, at a meeting duly called and held held, has by a unanimous vote of the directors present, based on February 11, 2002, unanimously the approval and recommendation of the Independent Directors Committee set forth in the preceding clause (i), (A) determined that this Agreement, the Offer, the Merger Agreement and the other transactions contemplated herebyTransactions, taken togetherincluding each of the Offer and the Merger, are at a price advisable and on terms fair to, advisable to and in the best interests of the Company holders of Shares (other than Cordant Holdings and the Company Stockholders; Purchaser), (iiB) voted to (A) approve approved and authorized this Agreement and the transactions contemplated herebyMerger and (C) recommended that (1) the stockholders of the Company (other than Cordant Holdings and Purchaser) accept the Offer and (2) the stockholders of the Company, including if approval is required by applicable law, approve and adopt this Agreement and the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv"Howmet Financial Advisor") took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Independent Directors Committee its written Fairness Opinion opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinionthis Agreement, the consideration to be received by the Company Stockholders pursuant to this Agreement, holders of Shares (other than Cordant Holdings and Purchaser) in the Offer and the Merger is fair to such holders from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerview.
(b) The Company shall provide for inclusion in the Offer Documents any information reasonably requested by Parent or Purchaser, and, to the extent reasonably requested by Parent or Purchaser, the Company shall cooperate in the preparation of the Offer Documents. The Company hereby agrees consents to the inclusion in the Offer Documents of the recommendation of the Company Board and the recommendation of the Independent Directors Committee described in Section 1.2(a).
(c) As soon as reasonably practicable on the date of filing by Purchaser of the amended Offer, the Company shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect SEC an amendment to the Offer, a Tender Offer its Solicitation/Recommendation Statement on Schedule 14D-9 (as amended and supplemented, together with any all further amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (icontaining the recommendation of the Independent Directors Committee and the Company Board described in Section 1.2(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule l4d-9 promulgated under the Exchange Act and any other applicable law. The Schedule 14D-9 shall comply as to form in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions requirements of the Company Board of Directors referred to in Section 1.2(a) Exchange Act and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)rules and regulations thereunder. The Company agrees to include such Schedule 14D-9 in shall not, at the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct respective times the Schedule 14D-9 if and or any amendments or supplements thereto are filed with the SEC or are first published, sent or given to stockholders of the extent that it shall become false Company, as the case may be, contain any untrue statement of a material fact or misleading in omit to state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were are made, not misleading (and misleading. The Company, Parent and Merger Sub shall supplement the Purchaser agree to correct promptly any information provided by any of them specifically for use in the Schedule 14D-9 to include any information that which shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities lawslaw. The Company shall give Parent and its Purchaser and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed and any amendments thereto prior to the filing thereof with the SEC or disseminated to the Company StockholdersSEC. The Company shall provide Parent and its Purchaser and their counsel copies with a copy of any written comments and telephone or telephonic notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 l4D-9 promptly after the receipt of such comments. thereof The Company shall use its commercially provide Parent, Purchaser and their counsel with a reasonable efforts opportunity, to respond the extent practicable, to such comments promptly, and shall provide Parent participate in all communications with the SEC and its counsel copies of staff, including any written responses meetings and telephonic notification of any verbal responses by the Company or its counsel telephone conferences, relating to the SEC or its staff.
(c) In connection with the OfferSchedule 14D-9, the Company shall promptly, Transactions or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d)Agreement. In the event that designees of Merger Sub are elected to the Company Board of Directors, until receives any comments from the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates SEC or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information staff with respect to the Company Schedule 14D-9, it shall use its reasonable best efforts to respond promptly to such comments and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order take all other actions reasonably necessary to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply resolve the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actionissues raised therein.
Appears in 2 contracts
Sources: Merger Agreement (Alcoa Inc), Merger Agreement (Howmet International Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and the Merger and represents and warrants that the Company Board Board, including all of Directorsthe independent directors of the Company, at a meeting duly called and held on February 11held, 2002has, unanimously subject to the terms and conditions set forth herein, adopted resolutions, which are not conditional and have not been amended or repealed, pursuant to which the Board (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to, and (B) recommend acceptance and approval by in the Company Stockholders of this Agreementbest interests of, the Offerstockholders of the Company, (ii) declared that the Merger is advisable and approved this Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment to the holders in all respects and such approval constitutes prior approval of the Rights; Offer, this Agreement and the Merger for purposes of Section 203(a)(1) of the Delaware General Corporation Law (ivthe "DGCL") took all actions necessary and advisable similar provisions of any other similar state statutes that might be deemed applicable to render inapplicable to each of the transactions contemplated hereby, (iii) recommended that the stockholders of the Company accept the Offer, tender their Shares thereunder to Acquisition and, if required by law, approve and adopt this Agreement and the Transaction Documents Merger; and in addition that the provisions of any Antitakeover Laws. Subject Company consents, subject to Section 6.4(c)5.4, the Company consents to the inclusion of such recommendations recommendation and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion approval in the Offer Documents, and (iv) takes all actions to amend the Schedule 14D-9 (as defined below) Company Option Plans and the Proxy Statement. The Company represents and warrants that it has been advised Rights Agreements contemplated by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerthis Agreement.
(b) The Company hereby agrees to file with the SEC, concurrently with SEC as soon as practicable after the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, date hereof a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any and all amendments, amendments thereof or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with containing the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to recommendation described in Section 1.2(a) and (iii) include to promptly mail the Fairness Opinion, in each case subject Schedule 14D-9 to Section 6.4(c)the stockholders of the Company. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company Company, Parent and Acquisition each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it such information shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent The Parent, Acquisition and its their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before prior to it is being filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall agrees to provide Parent to Parent, Acquisition and its their counsel copies of any written comments and telephone notification of any oral comments that or other communications which the Company or its counsel receive receives from the staff of the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such commentsthereof. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel Notwithstanding anything to the SEC contrary in this Agreement, the Board may withdraw, modify or amend its staffrecommendation under the circumstances set forth in Section 5.4.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement will promptly furnish Merger Sub Parent and Acquisition with mailing labels labels, security position listings and any available listing or computer files containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common the Shares held in stock depositories, each as of a recent date, date and shall promptly furnish Merger Sub Acquisition with such additional informationinformation and assistance (including, including without limitation, updated lists of stockholders, mailing labels and security position listings, and such other information and assistance lists of securities positions) as Merger Sub Acquisition or its agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholdersholders of Shares. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub Acquisition and their Affiliatesaffiliates, associates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and filesfiles only in connection with the Offer and the Merger, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Prism Financial Corp), Merger Agreement (Prism Financial Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Company's Board of DirectorsDirectors (the "BOARD"), at a meeting duly called and held on February 11held, 2002, unanimously has (i) determined that this Agreement, the Offer, terms of the Merger and the other transactions contemplated hereby, taken together, Offer are at a price and on terms fair to, advisable to and in the best interests of the Company and stockholders of the Company Stockholders; Company, (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of approved this Agreement, the Offer, the Merger Offer and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable resolved to render recommend that the stockholders of the Company Rights Agreement inapplicable accept the Offer, tender their Shares to the Transaction Documents, the Offer Purchaser thereunder and the Merger, without any payment to the holders of the Rights; approve and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Lawsadopt this Agreement. Subject to Section 6.4(c), the The Company hereby consents to the inclusion of such recommendations and approvals in the Offer DocumentsDocuments of the Board's recommendation described in the immediately preceding sentence. The Company shall not withdrawCompany's financial advisor Thom▇▇ ▇▇▇s▇▇ ▇▇▇tners (the "FINANCIAL ADVISOR"), modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion thatBoard, subject to the various qualifications and assumptions and qualifications set forth therein, its opinion to the effect that, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the $2.32 per Share in cash to be received in the Offer by holders of shares (other than Purchaser, the Identified Stockholders and the Merger their respective affiliates) is fair fair, from a financial point of view view, to such holders (other than Parent and its affiliates)holders. The Company has been authorized by the Independent Financial Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), permit the inclusion of a copy of such opinion (and a reference thereto in form and substance satisfactory to the Fairness Opinion Financial Advisor) in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerhereinafter defined).
(b) The Company hereby agrees to file On the date the Offer Documents are filed with the SEC, concurrently the Company shall file with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with any and all amendmentssuch Schedule 14D-9, supplements and exhibits theretoas amended or supplemented from time to time, the "Schedule SCHEDULE 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect containing the recommendations referred to in paragraph (a) above and actions shall mail the Schedule 14D-9 to the record holders of Shares as required by law. Each of the Company Board of Directors referred to and Purchaser shall promptly correct any information provided by it for use in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it such information shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)respect, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9, 14D-9 as so corrected amended or supplemented, supplemented to be filed with the SEC and disseminated to the Company StockholdersCompany's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Parent Purchaser and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule 14D-9 before it is filed prior to its filing with the SEC or disseminated dissemination to stockholders of the Company StockholdersCompany. The Company shall provide Parent Purchaser and its counsel copies of in writing with any written comments (and telephone notification of orally, any oral comments that comments) the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent consult with Purchaser and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel prior to the SEC or its staffresponding to such comments.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and non-objecting beneficial owners of Shares. The Company shall promptly furnish Merger Sub Purchaser with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub the Company, Purchaser or its their agents may reasonably request for the purpose of require in communicating the Offer to the record and beneficial Company Stockholdersholders of Shares. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the MergerOffer, Parent, Merger Sub the Company and their Affiliates, agents and advisors Purchaser shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, shall use such information solely in connection with the Offer, and, if this Agreement shall be is terminated in accordance with Article IX hereof or if the Offer is otherwise terminated, will shall promptly deliver or cause to be delivered to the Company all copies of such information information, labels, listings and files then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase possession or in the number possession of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates their agents or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actionrepresentatives.
Appears in 2 contracts
Sources: Tender Offer Agreement (Gilat Satellite Networks LTD), Tender Offer Agreement (Gilat Satellite Networks LTD)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called and held and acting on February 11the unanimous recommendation of a special committee of the Board of Directors of the Company composed entirely of non-management independent directors (the "Special Committee"), 2002, unanimously has (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are advisable and are fair to and in the best interests of the Company's stockholders (Bother than Parent and its Affiliates), (ii) recommend acceptance and approval by the Company Stockholders of approved this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment to in accordance with the holders requirements of the Rights; Delaware Law and (iviii) took all actions necessary and advisable subject to render inapplicable Section 7.04(c), resolved to each recommend acceptance of the transactions contemplated Offer and adoption of this Agreement by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documentsits stockholders. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby further represents and warrants that the Independent Advisor UBS Warburg LLC has delivered to the Company Board of Directors Special Committee its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, opinion that the consideration to be received by the Company Stockholders pursuant to this Agreement, paid in the Offer and the Merger is fair from a financial point to the holders of view to such holders Shares (other than Parent and its affiliates)Affiliates) from a financial point of view. The Company has been authorized by advised that all of its directors who own Shares intend either to tender their Shares pursuant to the Independent Advisor Offer or to permitvote in favor of the Merger. The Company will promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheldSection 7.04(c), the inclusion will provide to Parent such additional information (including updated lists of the Fairness Opinion in the Offer Documentsstockholders, the Schedule 14D-9 (as defined belowmailing labels and lists of securities positions) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to such other assistance as Parent may reasonably request in connection with the Offer.
(b) The As soon as practicable on the day that the Offer is commenced, the Company hereby agrees to shall file with the SECSEC and disseminate to holders of Shares, concurrently with the filing by Parent in each case as and Merger Sub of the Schedule TO with respect to the Offerextent required by applicable federal securities laws, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities lawsthat, (ii) subject to Section 7.04(c), shall reflect the recommendations and actions of the Company Company's Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)above. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Company, Parent and Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company Subsidiary each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect respect. The Company agrees to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is prior to its being filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall provide Parent and its counsel copies with a copy of any written comments and telephone notification of any oral comments that the Company or its counsel receive received from the SEC or its staff with respect to on the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff14D-9.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 2 contracts
Sources: Merger Agreement (Sodexho Alliance S A), Merger Agreement (Sodexho Marriott Services Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously Directors has (i) determined that this Agreement, each of the Offer, the Offer and Merger and the other transactions contemplated hereby, taken together, are at a price and on terms is fair to, advisable to and in the best interests of the Company and the Company Stockholders; Company's stockholders, (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, approved the Merger and the other transactions contemplated hereby making of the Offer and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable resolved to render the Company Rights Agreement inapplicable to the Transaction Documents, recommend acceptance of the Offer by the Company's stockholders and the Merger, without any payment to the holders approval and adoption of this Agreement and authorization of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each Merger by the stockholders of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c)Company; provided, the Company consents to the inclusion of however, that such recommendations and approvals recommendation may be withdrawn, modified or amended in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent accordance with Section 6.4(c7.5(b). The Company hereby represents and warrants that the Independent Advisor has Morg▇▇ ▇▇▇n▇▇▇ & ▇o. Incorporated ("Morg▇▇ ▇▇▇n▇▇▇") ▇as delivered to the Company Company's Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, opinion that as of the date of hereof, based upon the Fairness Opinionfactors considered by Morg▇▇ ▇▇▇n▇▇▇ ▇▇ connection with the transactions contemplated by this Agreement, the consideration Price Per Share to be received by the Company Stockholders holders of shares of Common Stock pursuant to the Offer, this Agreement, the Offer Agreement and the Merger is fair fair, from a financial point of view view, to such holders (other than Parent receiving the Price Per Share and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject that a copy of such opinion will be promptly delivered to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferAcquiror.
(b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent Promptly upon execution of this Agreement and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, furnish Newco with or cause its transfer agent Newco to promptlybe furnished with such information, following execution including lists of this Agreement furnish Merger Sub with the stockholders of the Company, mailing labels containing the names and addressees lists of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositoriessecurities positions, each as of a recent date, and shall promptly furnish Merger Sub with thereafter render such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub the Acquiror or its agents Newco may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company StockholdersCompany's stockholders. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub the Acquiror and Newco and each of their Affiliates, agents respective affiliates and advisors associates shall hold in confidenceconfidence the information contained in any of such labels and lists, and will use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be is terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.their
Appears in 2 contracts
Sources: Merger Agreement (Buttrey Food & Drug Stores Co), Merger Agreement (Albertsons Inc /De/)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that Tender Offer. Concurrently with the filing of the Schedule TO, the Company Board of Directors, at a meeting duly called shall file with the SEC and held on February 11, 2002, unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment mail to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from Shares a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits or amendments thereto, the "Schedule SCHEDULE 14D-9"). The Schedule 14D-9 will set forth, and the Company hereby represents to Ford and Parent, that (a) that will each of the Special Committee and the Board of Directors of the Company, at meetings duly called and held, has (i) determined that each of the Tender Offer and the Merger is fair to and in the best interests of the Company's stockholders (other than Parent and its affiliates); (ii) approved this Agreement and the transactions contemplated hereby, including, without limitation the Tender Offer and the Merger; and (iii) resolved to recommend that the Company's stockholders accept the Tender Offer, tender their Shares pursuant thereto and approve and adopt this Agreement and the Merger if submitted for their approval; provided, however, that such recommendation may be withdrawn or modified to the extent that the Board, based on the recommendation of the Special Committee, determines in good faith, based on the advice of outside counsel, that such recommendation would be inconsistent with its fiduciary duties to the Company's stockholders under applicable law; and (b) Lazard Freres & Co. LLC, the financial advisor to the Special Committee ("LAZARD LLC"), has delivered to the Special Committee and the Board its written opinion that the consideration to be received by the stockholders of the Company (other than Parent and its affiliates) pursuant to each of the Tender Offer and the Merger is fair to such stockholders from a financial point of view. The Schedule 14D-9 will comply in all material respects with the provisions of all applicable federal securities lawslaws and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company's stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied by Ford or Parent and Merger Sub shall supplement the information provided by them specifically in writing for use inclusion in the Schedule 14D-9 14D-9. The Company further agrees to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, 14D-9 to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of the Company, on the one hand, and Ford and Parent, on the other hand, agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false and misleading in any material respect and the Company Stockholdersfurther agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable the opportunity to review and comment on the initial Schedule 14D-9 before it is filed with the SEC or disseminated to SEC. In addition, the Company Stockholders. The Company shall agrees to provide Ford, Parent and its their counsel copies of with any written comments and telephone notification of any oral comments or other communications that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffother communications.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Hertz Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called and held on February 11June 7, 20021999, unanimously and acting on the unanimous recommendation of the Independent Committee, has, with two abstentions, (i) unanimously determined that this Agreement, the Offer, the Merger terms and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests conditions of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment are fair to and in the best interest of the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders Shares (other than Parent and its affiliates), and that the Merger Consideration is fair to the holders of Shares (other than Parent and its affiliates), (ii) unanimously approved this Agreement and the transactions contemplated hereby, including the Offer and the Merger, and declared their advisability and (iii) unanimously resolved to recommend acceptance of the Offer and approval and adoption of this Agreement and the Merger by its stockholders. The Company has been authorized by further represents that Bear ▇▇▇▇▇▇▇ & Co. Inc., the Independent Advisor to permitCommittee's independent financial advisor, subject has delivered to the prior review Independent Committee its written opinion that the Merger Consideration and consent the Merger is fair to the holders of the Independent Advisor Shares (other than Parent and its counsel (such consent not to be unreasonably withheld), the inclusion affiliates) from a financial point of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerview.
(b) The Company hereby agrees to file In connection with the SECOffer, concurrently the Company will promptly furnish Parent with mailing labels addressed to the record holders of the Shares and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case as of the most recent practicable date, and will provide to Parent such additional information (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in disseminating the Offer Documents to the record and beneficial holders of the Shares. Except for such steps as are reasonably necessary to disseminate the Offer Documents and any other documents as are reasonably necessary in connection with the filing Offer and the other transactions contemplated by this Agreement, Parent and Merger Sub shall hold in confidence the information contained in any of such lists, labels and files and the additional information referred to in the preceding sentence; will use such information only in connection with the Offer and the Merger; and, if this Agreement is terminated, will, upon request, deliver to the Company all tangible embodiments of such information, including but not limited to tangible embodiments in written form or on machine-readable media, and any copies or extracts therefrom then in its possession; PROVIDED that it is expressly understood that this sentence shall not limit any rights that Parent or its affiliates may have under applicable law to obtain and use a list of stockholders of the Schedule TO with respect Company or any other information pertaining to the OfferCompany.
(c) As soon as practicable on the day that the Offer is commenced, the Company will file with the SEC a Tender Offer Solicitation/Recommendation Statement pursuant to Rule 14d-9 under the 1934 Act on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule SCHEDULE 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) which shall reflect the recommendations and actions of the Company Company's Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)above. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company and Parent each agrees promptly to correct the any information provided by it for use in Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect respect. The Company agrees to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is prior to its being filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall provide will furnish to Parent and its counsel copies Merger Sub a copy of any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffthereof.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Intek Global Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 1125, 20022000, unanimously at which all of the Directors were present, and acting on the unanimous recommendation of the Special Committee, duly and unanimously: (i) determined that approved and adopted this Agreement, the Offer, the Merger Subscription Agreement and the other Voting Agreement and the transactions contemplated herebyhereby and thereby, taken together, are at a price and on terms fair to, advisable and in including the best interests of the Company Offer and the Company StockholdersMerger; (ii) voted recommended that the shareholders of the Company accept the Offer, tender their Shares pursuant to (A) the Offer and approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary determined that this Agreement and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentstransactions contemplated hereby, including the Offer and the Merger, without any payment are fair to and in the holders best interests of the Rightsshareholders of the Company; and (iv) took all actions action necessary and advisable to render the limitations on business combinations contained in Part 2 of Article 11 of the Georgia Code inapplicable to each of this Agreement, the Subscription Agreement and the Voting Agreement and the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations hereby and approvals in the Offer Documentsthereby. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby further represents and warrants that ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("▇.▇. ▇▇▇▇▇▇") as financial advisor to the Independent Advisor has Special Committee, delivered to the Company Special Committee and the Board of Directors its a written Fairness Opinion thatopinion, subject dated as of February 25, 2000, to the various assumptions and qualifications set forth therein, as of effect that the date of the Fairness Opinion, the consideration Per Share Amount to be received by the shareholders (other than Parent, Purchaser and the Contributing Shareholders) of the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair to such shareholders from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerview.
(b) The Company hereby agrees to file with the SEC, concurrently with as promptly as practicable after the filing by Parent and Merger Sub Purchaser of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") and the Schedule 13E-3 that will (i) will comply in all material respects with the provisions of all applicable federal Federal securities laws, laws and (ii) reflect will include the recommendations and actions opinion of the Company Board of Directors ▇.▇. ▇▇▇▇▇▇ referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)hereof. The Company agrees to include such Schedule 14D-9 in the mailing of and the Offer Documents by Merger Sub to shall contain the Company Stockholders promptly after the commencement recommendations of the OfferBoard of Directors described in Section 1.2(a) hereof. The Company agrees promptly to correct the Schedule 14D-9 or the Schedule 13E-3 if and to the extent that it shall become false or misleading in any material respect (and each of Parent and Merger SubPurchaser, with respect to written information supplied by them it specifically for use in the Schedule 14D-914D-9 or the Schedule 13E-3, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 or the Schedule 13E-3 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 or the Schedule 13E-3 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, Company's shareholders to the extent required by applicable federal Federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffSEC.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following promptly upon execution of this Agreement furnish Merger Sub Parent with mailing labels containing the names and addressees addresses of all record Company Stockholdersholders of Shares, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub Parent with such additional information, including updated lists of stockholdersshareholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements holders of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession▇▇▇▇▇▇.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Hilltopper Holding Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the board of directors of the Company (the “Board of Directors”), at a meeting duly called and held on February 11held, 2002, unanimously has (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interests of the Company’s stockholders, (Bii) recommend acceptance and approval by the Company Stockholders of approved this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment to in accordance with the holders requirements of the Rights; Delaware Law and (iviii) took all actions necessary and advisable resolved, subject to render inapplicable Section 7.04(b), to each recommend acceptance of the transactions contemplated Offer and adoption of this Agreement by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documentsits stockholders. The Company shall not withdrawpromptly furnish Parent with a list of its stockholders, modify mailing labels and any available listing or fail to reaffirm such recommendations computer file containing the names and approvals addresses of all record holders of Shares and lists of securities positions of Shares held in any manner inconsistent with Section 6.4(c). The Company hereby represents stock depositories, in each case true and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, correct as of the date most recent practicable date, and shall provide to Parent such additional information (including updated lists of the Fairness Opinionstockholders, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer mailing labels and the Merger is fair from a financial point lists of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined belowsecurities positions) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to such other assistance as Parent may reasonably request in connection with the Offer.
(b) The As soon as practicable on the Offer Commencement Date, the Company hereby agrees to shall file with the SECSEC and disseminate to holders of Shares, concurrently with the filing by Parent in each case as and Merger Sub of the Schedule TO with respect to the Offerextent required by applicable federal securities laws, a Tender Offer the Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that will (i) comply in all material respects with the provisions of all applicable federal securities lawsthat, (ii) subject to Section 7.04(b), shall reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)above. The Company agrees to include such Schedule 14D-9 in the mailing Each of the Offer Documents by Company, Parent and Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company Subsidiary agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become (or shall have become known to be) false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the respect. The Company shall take all steps necessary use reasonable best efforts to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case to the extent required by applicable federal securities laws. Parent Parent, Merger Subsidiary and its their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 each time before it is filed with the SEC or disseminated to SEC, and the Company Stockholdersshall give reasonable and good faith consideration to any comments made by Parent, Merger Subsidiary and their counsel. The Company shall provide Parent Parent, Merger Subsidiary and its their counsel copies of with (i) any comments or other communications, whether written comments and telephone notification of any oral comments or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly but in no event later than one Business Day after receipt of such comments. The Company those comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (to which reasonable and good faith consideration shall use its commercially reasonable efforts to respond to such comments promptlybe given), and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses including by participating with the Company or its counsel to the SEC in any discussions or its staff.
(c) In connection meetings with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionSEC.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting Directors has duly called and held on February 11, 2002, unanimously (i) determined that this Agreement, adopted resolutions approving the Offer, the Merger Merger, this Agree- ment, the Tender Agreements and the other transactions contemplated herebyacquisition of shares of Common Stock pursuant thereto, taken together, has determined that the Merger is advisable and that the terms of the Offer and the Merger are at a price and on terms fair to, advisable and in the best interests of of, the Company Company's stockholders and the Company Stockholders; (ii) voted has resolved to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders approval of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each Merger by the stockholders of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover LawsCompany. Subject to Section 6.4(c), the The Company hereby consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that Documents of the Independent Advisor has delivered to recommendation of the Company Board of Directors its written Fairness Opinion thatof the Company described in this Section 1.2(a), subject to the various assumptions and qualifications set forth therein, as right of the date Board of Directors of the Fairness Opinion, the consideration Company to be received by the Company Stockholders pursuant to this Agreement, withdraw or modify its approval or recommendation of the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined belowaccordance with Section 5.7(b) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerhereof.
(b) The Concurrently with the commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer SolicitationSolicita- tion/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements thereto and including the exhibits thereto, the "Schedule 14D-9") that which shall, subject to the right of the Board of Directors of the Company to withdraw or modify its approval or recommendation of the Offer in accordance with Section 5.7(b) hereof, contain the recommendation referred to in Section 1.2(a) hereof. The Schedule 14D-9 will (i) comply in all material respects with the provisions of all applicable federal securities lawslaws and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company's stockhold- ers, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information furnished by the Parent and Merger Sub shall supplement or the information provided Purchaser for inclusion or incorporation by them specifically for use reference in the Schedule 14D-9 14D-9. The Company further agrees to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, 14D-9 to be filed with the SEC and disseminated to be disseminat- ed to holders of the Company StockholdersShares, in each case as and to the extent required by applicable federal securities laws. Each of the Company, on the one hand, and the Parent and the Purchaser, on the other hand, agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false and misleading in any material respect and the Company further agrees to take all steps neces- sary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securi- ties laws. The Parent and its counsel shall be given a reasonable opportunity the oppor- tunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to SEC. In addition, the Company Stockholders. The Company shall agrees to provide Parent the Parent, the Purchaser and its their counsel copies of with any comments, whether written comments and telephone notification of any oral comments or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such commentscomments or other communica- tions. The Company shall use has been advised by each of its commercially reasonable efforts directors that as of the date hereof each such person intends to respond to tender all of the shares of Common Stock owned by such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel person pursuant to the SEC or its staffOffer.
(c) In connection with the Offer, the Company shall promptly, will promptly furnish or cause its transfer agent to promptlybe furnished to the Purchaser mailing labels, following execution of this Agreement furnish Merger Sub with mailing labels security position listings and any available listing or computer file containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common the Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub the Purchaser with such additional informationinformation (includ- ing, including but not limited to, updated lists of stockholdersholders of the Shares and their addresses, mailing labels and lists of security position listings, and such other information posi- tions) and assistance as Merger Sub the Purchaser or its agents may reasonably reason- ably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholdersbenefi- cial holders of the Shares. Subject to the requirements of applicable Law, and except Except for such steps as are appropriate neces- sary to disseminate the Offer Documents Documents, the Parent and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors Purchaser shall hold in confidenceconfidence the information contained in any of such labels and lists and the additional information referred to in the preceding sentence, and will use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be is terminated, will promptly upon request of the Company deliver or cause to be delivered to the Company all copies of such information then in their possessionits possession or the possession of its agents or representatives.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Joseph Littlejohn & Levy Fund Ii Lp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the board of directors of the Company (the "Board of Directors"), at a meeting duly called and held on February 11held, 2002, has unanimously (i) determined that this AgreementAgreement and the transactions contemplated hereby, including, without limitation, the Offer, the Merger and the other transactions purchase of Shares of Company Common Stock contemplated hereby, taken togetherby the Offer (collectively the "Transactions"), are at a price advisable and on terms fair to, advisable to and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve Company's stockholders, unanimously approved of and adopted this Agreement and the transactions Transactions in accordance with the requirements of the General Corporation Law of the State of Delaware (the "DGCL") so that the provisions of Section 203 of the DGCL are not applicable to the Transactions provided for, referred to or contemplated herebyby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, and resolved to recommend that the stockholders of the Company accept the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Shares of Company Common Shares in the Offer; (iii) took all other action necessary and advisable Stock pursuant to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and approve and adopt this Agreement and the Merger. Notwithstanding the foregoing, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated such recommendation may be withdrawn, modified or amended as permitted by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c6.05(c). The Company hereby represents and warrants that the Independent Advisor has delivered consents to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined belowherein defined) and the Proxy StatementStatement (as herein defined), if any, of such recommendation of the Board of Directors. The Company represents and warrants that it the Board of Directors has received the written opinion (the "Fairness Opinion") of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), stating that, as of the date of such opinion, the proposed consideration to be received by the holders of Shares of Company Common Stock pursuant to the Offer and the Merger is fair to such holders from a financial point of view. The Company acknowledges that the Voting and Tender Agreement is being executed and delivered contemporaneously herewith by holders of a majority of the outstanding Shares and that the Company has also been advised by each of its directors and executive officers by each corporate officer who, as of the date hereof, is aware of the Transactions and is not a party to or bound by such Voting and Tender Agreement, that they intend each such person intends to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer all Shares of Company Common Stock owned, of record or beneficially, by such person which he or she may sell without liability under Section 16(b) of the Exchange Act, unless the Company's recommendation shall have been withdrawn or materially modified as permitted by Section 6.05(c). As soon as reasonably practicable on the date of commencement of the Offer.
(b) The , the Company hereby agrees to shall file with the SECSEC and disseminate to holders of Shares of Company Common Stock, concurrently with the filing by Parent in each case as and Merger Sub of the Schedule TO with respect to the Offerextent required by applicable federal securities Laws, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that shall reflect the recommendation of the Board of Directors referred to in clause (iii) of Section 1.02(a) hereof. The Schedule 14D-9 will (i) comply in all material respects with the provisions of all applicable federal securities lawsLaws and, (ii) reflect on the recommendations date filed with the SEC and actions on the date first published, sent or given to the Company's stockholders, 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 were made, not misleading, except that no representation is made by the Company Board of Directors referred with respect to information supplied by Parent or Purchaser in Section 1.2(a) and (iii) include writing for inclusion in the Fairness Opinion, in each case subject to Section 6.4(c)Schedule 14D-9. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly Company, Parent and Purchaser each agree to correct promptly any information provided by it for use in the Schedule 14D-9 if and to the extent that it such information shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained provided by it specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 misleading. The Company agrees to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, supplemented to be filed with the SEC and to be disseminated to the holders of Shares of Company StockholdersCommon Stock, in each case as and to the extent required by applicable federal and state securities lawsLaws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is prior to its being filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall agrees to provide to Parent and its counsel copies of any written comments and telephone notification of any oral comments that or other communications which the Company or its counsel may receive from the staff of the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of thereof. Parent, Purchaser and the Company each hereby agree to provide promptly such commentsinformation necessary to prepare the exhibits and schedules to the Schedule 14D-9 and the Offer Documents which the respective party responsible therefor may reasonably request. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or will cause its transfer agent promptly to promptlyfurnish Parent and Purchaser with a list of the Company's stockholders, following execution of this Agreement furnish Merger Sub with mailing labels and any available listings or computer file containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Shares of Company Common Stock and lists of securities positions of Shares of Company Common Stock held in stock depositories, each depositories as of a recent date, date and shall promptly furnish Merger Sub with to provide to Parent and Purchaser such additional informationinformation (including, including without limitation, updated lists of stockholders, mailing labels and security position listings, lists of securities positions) and such other information and assistance as Merger Sub Parent or its Purchaser or their agents may reasonably request for in connection with the purpose of communicating the Offer to the record and beneficial Company StockholdersOffer. Subject to the requirements of applicable Law, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the MergerTransactions, ParentParent and Purchaser and each of their affiliates, Merger Sub associates and their Affiliates, agents and advisors shall will hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, will use such information only in connection with the Offer and the Merger and, if this Agreement shall be is terminated, will promptly deliver deliver, and will cause their agents to deliver, to the Company all copies of and any extracts or summaries from such information then in their possessionpossession or control.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11May 23, 20022000 at which a quorum was present and acting throughout, unanimously by a unanimous vote has (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, hereby (the "TRANSACTIONS") are at a price and on terms fair to, advisable to and in the best interests of the Company and holders of the Company Stockholders; Shares, (ii) voted to (A) approve authorized, approved, adopted and declared advisable this Agreement and the transactions contemplated hereby, including the Merger, Transactions and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable resolved to render recommend that the stockholders of the Company Rights Agreement inapplicable to the Transaction Documents, accept the Offer and the Merger, without any payment tender their Shares to Purchaser pursuant to the holders of Offer and/or approve and adopt this Agreement (such recommendation is hereinafter referred to as the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c"COMPANY BOARD RECOMMENDATION"). The Company hereby represents and warrants that consents to the Independent Advisor has delivered to inclusion in the Offer Documents of the Company Board of Directors its written Fairness Opinion thatRecommendation, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliatesSection 6.02(b). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Concurrently with the commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule SCHEDULE 14D-9") that will (icontaining the recommendation of the Company Board described in Section 1.02(a) and shall disseminate the Schedule 14D-9 to the holders of the Shares to the extent required by Rule 14d-9 promulgated under the Exchange Act and any other applicable federal securities laws. The Schedule 14D-9 shall comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions . Each of the Company Board of Directors referred to Company, on the one hand, and Parent and Purchaser, on the other hand, shall correct promptly any information provided by it for use in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it which shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected or supplementedcorrected, to be filed with the SEC and disseminated to holders of the Company StockholdersShares, in each case as and to the extent required by applicable federal securities laws. Parent The Company shall give Parent, Purchaser and its their counsel shall be given a reasonable opportunity to review and comment on upon the Schedule 14D-9 before prior to it is being filed with with, or sent to, the SEC or disseminated to the Company StockholdersSEC. The Company shall agrees to provide Parent Parent, Purchaser and its their counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of the Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company shall promptly furnish Merger Sub Purchaser with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent, Purchaser or its their agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall (i) hold in confidenceconfidence the information contained in such labels, listings and files, (ii) use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings Merger and files, and, (iii) if this Agreement shall be terminatedis terminated in accordance with Article IX, will upon request of the Company, promptly deliver or cause to be delivered to the Company all copies of such information then in their possessionpossession or the possession of their affiliates, agents or representatives.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) (i) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11, 2002, unanimously has (iA) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interests of the Company’s stockholders, (B) recommend acceptance approved and approval by the Company Stockholders of adopted this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment in accordance with the requirements of the Delaware Law and (C) resolved to recommend that the Company’s stockholders accept the Offer, tender their Company Shares to the holders of Merger Sub pursuant to the Rights; Offer and approve and adopt this Agreement (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c)such recommendation, the “Board Recommendation”).
(ii) The Company hereby consents to the inclusion of such recommendations the foregoing determinations and approvals and the Board Recommendation in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) As soon as practicable following the date hereof, the Company shall amend the Schedule 14D-9 it previously filed with the SEC to reflect the termination of the First Merger Agreement and affirm the Board Recommendation. The Company hereby agrees shall disseminate to file with holders of Company Shares such amended version to the SECextent required by applicable federal securities laws. Each of the Company, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become (or shall have become known to be) false or misleading in any material respect (respect. The Company has used and Parent and Merger Sub, with respect to information supplied by them specifically for shall use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary reasonable best efforts to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the holders of Company StockholdersShares, in each case to the extent required by applicable federal securities laws. Parent Parent, Merger Sub and its their counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule 14D-9 each time before it is filed with the SEC or disseminated to SEC, and the Company Stockholdersshall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel. The Company has provided and shall provide Parent Parent, Merger Sub and its their counsel copies of with (i) any comments or other communications, whether written comments and telephone notification of any oral comments or oral, that the Company or its counsel has received or may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially those comments or other communications and (ii) a reasonable efforts opportunity to respond to such comments promptly, review and shall provide Parent and its counsel copies of comment on any proposed written responses in respect thereof before they are submitted to the SEC and telephonic notification of any verbal responses by to participate with the Company or its counsel to the SEC in any discussions or its staff.
(c) In connection meetings with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionSEC.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11December [_], 20022005, unanimously the Company Board (i) determined that this Agreement, the Offer, and this Agreement and the transactions contemplated thereby and hereby (including the Merger and the other transactions contemplated hereby, taken together, Second Merger) are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; stockholders, (ii) voted to (A) approve approved and adopted this Agreement and the transactions contemplated hereby, including the Offer, the Merger, and (B) recommend acceptance the Second Merger in all respects in accordance with Delaware law, and such approval by the Company Stockholders constitutes approval of this Agreement, the Offer, this Agreement and the Merger and for all purposes of Section 203 of the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares DGCL (as described in the Offer; Section 4.04(b)), (iii) approved and adopted an amendment to the terms of the Company Rights Agreement (as defined in Section 3.01(f)) and took all other action actions necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction DocumentsParent, Merger Sub, the Offer Offer, this Agreement and the MergerMerger (such action, without any payment to collectively, the holders of the Rights; “Rights Plan Amendment”), and (iv) took all actions necessary and advisable resolved to render inapplicable to each recommend that the stockholders of the transactions contemplated Company tender their Shares to Merger Sub pursuant to the Offer and that the stockholders of the Company adopt and approve this Agreement and the Merger if stockholder approval is required by the Transaction Documents DGCL; provided, however, that such recommendation may be withdrawn, modified or amended if permitted by Section 6.03 and subject to the provisions payment of any Antitakeover Lawsapplicable fees resulting from such action as provided in Section 6.09. Subject to Section 6.4(c), the The Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations Documents and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, Information Statement.
(i) As promptly as of practicable after the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect SEC an amendment to the Offer, a Tender Offer its Solicitation/Recommendation Statement on Schedule 14D-9 (together originally filed on December 5, 2005, with any respect to the Offer, reflecting the Company Board’s recommendation that the Company’s stockholders accept and all amendments, supplements and exhibits theretotender Shares pursuant to the Offer, the "Company Board’s approval of this Agreement and otherwise reflecting the terms and conditions of this Agreement and including the information regarding Parent’s designees to the Company Board pursuant to Section 1.03 to the extent Parent shall have theretofore provided the information required by Section 1.03(b) (such Schedule 14D-9", as amended or supplemented from time to time, the “Schedule 14D-9”), (ii) that if (x) following the completion of the Offer and any exercise of the Top-Up Option, consummation of the Merger under Section 253 of the DGCL as contemplated by Section 1.05 is not permitted by the terms of Section 253 of the DGCL and (y) Parent delivers to the Company a written consent of the holders of Table of Contents Shares in accordance with Section 228 of the DGCL duly adopting this Agreement under Section 251 of the DGCL and so requests, the Company shall as promptly as reasonably practicable file with the SEC an Information Statement on Schedule 14C (as amended or supplemented from time to time, the “Information Statement”), describing the Merger and the Second Merger and including such information regarding Parent, Merger Sub, the Company and the terms and approval of such transactions as is required by such form and under applicable Law, and (iii) shall disseminate the Schedule 14D-9 and the Information Statement to the holders of Shares at the times and to the extent required by applicable Laws. The Schedule 14D-9 (including the information regarding Parent’s designees to the Company Board) and the Information Statement will (i) comply in all material respects with the provisions of all applicable federal securities lawslaws and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company’s stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied by Parent or Merger Sub in writing for inclusion in the Schedule 14D-9 or the Information Statement. Each of Parent and Merger Sub shall supplement promptly furnish to the Company all information concerning Parent and Merger Sub that is required or reasonably requested by the Company in connection with such actions. The Company, Parent and Merger Sub each agrees promptly to correct any information provided by them specifically it for use in the Schedule 14D-9 or the Information Statement if and to include the extent that it shall have become false or misleading in any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)material respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 and the Information Statement as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of the Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company StockholdersLaws. The Company shall further agrees to promptly advise Parent of any comments or other communications (and promptly provide Parent and its counsel copies of any such written comments and telephone notification materials or reasonably detailed summaries of any oral comments communications) that the Company or its counsel or representatives may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt or any other securities filings of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel related to the SEC Offer, the Merger or its staffthe transactions contemplated hereby or thereby.
(c) In connection with the OfferOffer and the mailing of the Offer Documents and the Information Statement, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement will promptly furnish Parent and Merger Sub with mailing labels labels, security position listings and any available listing or computer files containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common the Shares held in stock depositories, each as of a the most recent date, date practicable and shall promptly furnish Merger Sub with such additional informationinformation and assistance (including, including without limitation, updated lists of stockholdersstockholder lists, mailing labels and security position listings, and such other information and assistance lists of securities positions) as Merger Sub or its agents may reasonably request for the purpose of in communicating the Offer or the matters subject to the Company Stockholder Approval (as defined in Section 4.04(a)) to the record and beneficial Company Stockholdersholders of Shares. Subject to the requirements of applicable Law, and except Except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer, the Merger or the Second Merger, Parent, Merger Sub and their Affiliatesrespective affiliates, associates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and filesfiles only in connection with the Offer and the Merger, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following possession promptly upon the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Allergan Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 1114, 20022000, unanimously acting by the unanimous vote of those present: (i) determined that approved and adopted this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in including the best interests of the Company Offer and the Company StockholdersMerger, and the Stockholders Agreements; (ii) voted recommended that the stockholders of the Company accept the Offer, tender their Shares pursuant to (A) the Offer and approve this Agreement and the transactions contemplated hereby, including the Merger, ; and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary determined that this Agreement and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentstransactions contemplated hereby, including the Offer and the Merger, without any payment are advisable, fair to and in the holders best interests of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each stockholders of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferCompany.
(b) The Company hereby agrees to file with the SEC, concurrently with as promptly as practicable after the filing by Parent and Merger Sub Purchaser of the Schedule TO with respect to the OfferOffer but in any event on the date such Schedule TO is filed with the SEC, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) will comply in all material respects with the provisions -4- 9 of all applicable federal Federal securities laws, laws and (ii) reflect will include the recommendations and actions opinion of the Company Board of Directors Financial Advisor referred to in Section 1.2(a4.3(c) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)hereof. The Company agrees to include mail such Schedule 14D-9 in to the mailing stockholders of the Company along with the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees that the Schedule 14D-9 and the Offer Documents shall contain the recommendations of the Board of Directors described in Section 1.2(a) hereof. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and each of Parent and Merger SubPurchaser, with respect to written information supplied by them it specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and each of Parent and Merger Sub Purchaser shall supplement the information provided by them it specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company StockholdersCompany's stockholders, in each case to the extent required by applicable federal Federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffSEC.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following promptly upon execution of this Agreement furnish Merger Sub Parent with mailing labels containing the names and addressees addresses of all record Company Stockholdersholders of Shares, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub Parent with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements holders of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionShares.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (At&t Corp)
Company Action. (a) The Company DOCP hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsDOCP Board, at a meeting duly called and held on February 11held, 2002has, unanimously by the vote of all directors present with one abstension, (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and (B) recommend acceptance and approval by in the Company Stockholders best interest of this Agreement, the Offer, the Merger DOCP and the holders of DOCP Shares (other than CSX and the Management Investor), (ii) approved and adopted this Agreement and the transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment to which approval satisfies in full the holders requirements of the Rights; and New York Law (iv) took including all actions necessary and advisable to render inapplicable to each approvals required under Section 912 of the New York Law in connection with the consummation of the transactions contemplated hereby) and (iii) resolved to recommend acceptance of the Offer, and, if applicable, approval and adoption of this Agreement and the Merger, by the Transaction Documents the provisions holders of any Antitakeover LawsDOCP Shares. Subject to Section 6.4(c)DOCP further represents that Smit▇ ▇▇▇▇▇▇, the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor ▇▇c. has delivered to the Company DOCP Board its opinion, dated the date of Directors its written Fairness Opinion this Agreement (which will be confirmed in writing as promptly as practicable after the date of this Agreement), that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinionsuch date, the cash consideration to be received by the Company Stockholders pursuant to this Agreement, in the Offer and the Merger by the holders of DOCP Shares (other than CSX, NSC and the Management Investor and their respective affiliates) is fair to such holders from a financial point of view to such view. DOCP shall promptly furnish Buyer with a list of its shareholders, mailing labels, and any available listing or computer file containing the names and addresses of all record holders (other than Parent of DOCP Shares and its affiliates). The Company has been authorized by the Independent Advisor to permitlists of securities positions of DOCP Shares held in stock depositories, subject to the prior review in each case, true and consent correct as of the Independent Advisor most recent practicable date, and its counsel will provide to Buyer such additional information (such consent not to be unreasonably withheld)including updated lists of shareholders, the inclusion mailing labels and lists of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined belowsecurities positions) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to such other assistance as Buyer may reasonably request in connection with the Offer.
(b) The Company hereby agrees to As soon as practicable on the day that the Offer is commenced, DOCP shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits amendments thereto, the "Schedule 14D-9") that will (i) comply which, unless otherwise required due to the applicable fiduciary duties of the DOCP Board as determined by the members thereof in all material respects with good faith based on the provisions advice of all applicable federal securities lawsoutside counsel, (ii) shall reflect the recommendations and actions of the Company DOCP Board of Directors referred to above. Each party shall promptly supplement, update and correct any information provided by it for use in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it is or shall have become incomplete, false or misleading in misleading. In any material respect (and Parent and Merger Subsuch event, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company DOCP shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, updated or corrected to be filed with the SEC and to be disseminated to the Company Stockholdersholders of DOCP Shares, in each case, as and to the extent required by applicable United States federal securities laws. Parent Each other party hereto and its respective counsel shall be given a reasonable an opportunity to review and comment on the Schedule 14D-9 before it is and each supplement, amendment or response to comments with respect thereto prior to its being filed or delivered with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffSEC.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called and held on February 11or prior to the date hereof, 2002, unanimously has (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, are advisable and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is are fair from a financial point of view to such the holders of the Company's Common Stock, (other than Parent ii) approved this Agreement and its affiliates). The Company has been authorized the transactions contemplated hereby, including the Merger and the Stockholder Agreements and the transactions contemplated thereby, and (iii) resolved to recommend approval of the Merger and adoption of this Agreement by the Independent Advisor Company's stockholders (the recommendations referred to permit, subject in this clause (iii) are collectively referred to in this Agreement as the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld"RECOMMENDATIONS"), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The As soon as practicable after the date hereof, the Company hereby agrees to shall file with the Securities and Exchange Commission ("SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO ") a Proxy Statement with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 Merger which will contain or incorporate by reference all or part of the Plan of Merger and form of the related letter of transmittal and notice of shareholders meeting (together with any and all amendments, supplements and exhibits or amendments thereto, collectively the "Schedule 14D-9MERGER DOCUMENTS") that will (i) comply in all material respects with the provisions of all applicable federal securities laws). Parent, (ii) reflect the recommendations Merger Sub and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees agree promptly to correct any information provided by it for use in the Schedule 14D-9 Merger Documents and add any information that had been omitted therefrom if and to the extent that it such information shall have become false or misleading in any material respect (and Parent and Merger Subrespect. The Company, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 agree to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, Merger Documents as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities lawsSEC. The Parent and its Merger Sub and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is Merger Documents prior to their being filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall agrees to provide the Parent and Merger Sub and its counsel copies of with any written comments and telephone notification of any oral comments that the Company or its counsel may receive in writing from the SEC or its staff with respect to the Schedule 14D-9 promptly Merger Documents as soon as practicable after receipt of such written comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with Upon approval of the Offer, Merger Documents by the SEC the Company shall promptlypromptly cause the Merger Documents, or cause its transfer agent which shall include the Recommendations, to promptly, following execution be disseminated to holders of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent dateShares, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels schedule a shareholder's meeting twenty-one business days from the date the Notice and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer Proxy are mailed to the record and beneficial Company Stockholders. Subject holders of Shares; PROVIDED, HOWEVER, that prior to the requirements of applicable Law, and except for such steps Effective Time (as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold defined in confidence, and use only in connection with the Offer and the MergerSection 1.3(b) hereof), the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give of the Company may withhold, withdraw, modify or change in a manner adverse to Parent and Merger Sub, subject or fail to compliance with Section 14(f) of the Exchange Actmake, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors its Recommendations in accordance with the terms of this Section 1.2(d)5.4 hereof; PROVIDED FURTHER, including by increasing HOWEVER, that the size obligations of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or with respect to voting their Shares in favor of the Merger under any Stockholder Agreement entered into by such directors shall continue until termination of such Stockholder Agreement in accordance with their terms.
(vd) take any action taken by the The Company in connection with the transactions contemplated by this has been advised that each of its directors and executive officers and stockholders identified on Schedule 1.2(d) have executed a Stockholder Agreement, and shall vote in favor of the Merger.
(e) Each party hereto shall file all written communications, that are made public or otherwise supplied to third parties, with the SEC on or prior to the date the communication is first used as and to the extent required by the federal securities laws. All such affirmative majority vote communications shall be sufficient comply as to take form and content, including bearing the appropriate legends, in all material respects with the applicable provisions of the federal securities laws. Each party agrees that, prior to any such actionfiling or use of written communications, to the extent practicable as a result of the federal securities laws, such party will provide the other party and its counsel the opportunity to review and comment (promptly and in good faith) on such communications and filings.
Appears in 1 contract
Sources: Merger Agreement (Dset Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that (i) the Company Board of DirectorsBoard, at a meeting duly called and held on February 11August 12, 20021998, has unanimously (iA) determined that this Agreement, the Offer, the Merger Agreement and the other transactions contemplated herebyTransactions, taken togetherincluding the Offer and the Merger, are at a price and on terms fair to, advisable to and in the best interests of the Company holders of Shares, (B) approved and the Company Stockholders; (ii) voted to (A) approve adopted this Agreement and the transactions contemplated hereby, including Transactions (such approval and adoption having been made in accordance with the Mergerprovisions of -Section- 203 of Delaware Law) and (C) recommended that the stockholders of the Company accept the Offer and approve and adopt this Agreement and the Transactions, and (Bii) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; Credit Suisse First Boston (iii"CSFB") took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, an opinion that the consideration to be received by the Company Stockholders holders of Shares pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to the holders of Shares, a copy of the written opinion of which shall be delivered to Purchaser promptly after the date hereof. CSFB has agreed to permit the inclusion of its fairness opinion or references thereto in the Offer Documents (subject to CSFB's review and reasonable approval of the description of such holders (other than Parent and its affiliatesfairness opinion). Subject to the fiduciary duties of the Board under applicable law as determined by the Board in good faith after receiving advice from independent counsel, the Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board described in the immediately preceding sentence. The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend either to tender all Company Common Shares beneficially owned by them to Merger Sub Purchaser pursuant to the OfferOffer or to vote such Shares in favor of the approval and adoption by the stockholders of the Company of this Agreement and the Transactions.
(b) The As soon as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will containing, subject to the fiduciary duties of the Board under applicable law as determined by the Board in good faith after receiving advice from independent counsel, the recommendation of the Board described in Section 1.02(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Securities Exchange Act of 1934, as amended (i) comply in all material respects with the provisions of all "Exchange Act"), and any other applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly Company, Parent and Purchaser agree to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in promptly any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by any of them specifically for use in the Schedule 14D-9 to include any information that which shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent promptly furnish to promptly, following execution of this Agreement furnish Merger Sub with Purchaser mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company shall promptly furnish Merger Sub with to Purchaser such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent, Purchaser or its their agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidenceconfidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminatedterminated in accordance with Section 8.01, will promptly shall deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the -------------- Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called and held on February 11held, 2002, unanimously has by unanimous vote of the directors participating therein (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are advisable and are fair to and in the best interest of Company's stockholders, (Bii) recommend acceptance approved and adopted this Agreement and the transactions contemplated hereby, including the Offer and the Merger, which approval by the Company Stockholders constitutes approval under Section 203 of this Agreement, Delaware Law such that the Offer, the Merger Merger, this Agreement and the other transactions contemplated hereby are not and by the Transaction Documents shall not be subject to any restriction pursuant to Section 203 of Delaware Law, and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable resolved to render the Company Rights Agreement inapplicable to the Transaction Documents, recommend acceptance of the Offer and approval and adoption of this Agreement and the Merger, without any payment Merger by Company's stockholders (the recommendations referred to in this clause (iii) are collectively referred to in this Agreement as the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c"Recommendations"). The Company hereby further represents and warrants that the Independent Advisor FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. has delivered rendered to the Company Company's Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, opinion that the consideration to be received by the Company Stockholders Company's stockholders pursuant to this Agreement, the Offer and the Merger Agreement is fair to such stockholders from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants advised that it has been advised by each all of its directors and executive officers that they currently intend to tender all Company Common their Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The As soon as practicable on the day that the Offer is commenced, Company hereby agrees to will file with the SEC, concurrently with the filing by Parent SEC and Merger Sub disseminate to holders of the Schedule TO with respect to the Offer, Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities lawswhich shall, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c6.3(b), reflect the Recommendations. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Company, Parent and Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees each agree promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect respect. Company agrees to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is and any material amendments thereto prior to its being filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffSEC.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement will promptly furnish Parent and Merger Sub pursuant to the terms of the Confidentiality Agreement, dated as of May 1, 2000, between Company and Parent (the "Confidentiality Agreement") with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and security position listings lists of Company Common securities positions of Shares held in stock depositories, in each case as of a the most recent practicable date, and shall promptly furnish will provide to Parent and Merger Sub with such additional informationinformation (including, including without limitation, updated lists of stockholders, mailing labels and security position listings, lists of securities positions) and such other information and assistance as Parent or Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionOffer.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Ondisplay Inc)
Company Action. (a) The Provided that the conditions contained in Sections 3.1(a) and (c) are satisfied as of the date of commencement of the Offer, as if such date was the Closing Date, except as required by the fiduciary duties of the Board under applicable Law as determined by the Board in good faith, after consultation with its counsel, the Company hereby approves of and consents shall consent to the inclusion in the Offer and represents and warrants Documents of a statement that the Company Board of Directors, at a meeting duly called has authorized and held on February 11, 2002, unanimously (i) approved this Agreement and the transactions contemplated hereby and determined that this Agreement, the Offer, the Merger Agreement and the other such transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company Shareholders, but, that the Board is remaining neutral and making no recommendation as to whether Shareholders should tender their Shares in the Company Stockholders; Offer (ii) voted to (A) approve this Agreement and the transactions contemplated hereby"Board Recommendation"), including together with such other supporting information regarding the Merger, and (B) recommend acceptance and approval Board Recommendation as shall be mutually agreeable by the Company Stockholders Board and Purchasers. As promptly as reasonably practicable on or after the date of this Agreement, commencement of the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares (but in the Offer; (iiino event later than 5 business days thereafter) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply containing, except as required by the fiduciary duties of the Board under applicable Law as determined by the Board in all material respects good faith, after consultation with its counsel, the provisions of all Board Recommendation, and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Exchange Act, and any other applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly and Purchasers agree to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in promptly any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by any of them specifically for use in the Schedule 14D-9 to include any information that which shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected or supplementedcorrected, to be filed with the SEC and disseminated to the Company StockholdersShareholders, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(cb) In connection with the Offer, the The Company shall promptlyshall, or shall cause its transfer agent to promptlyagents to, following execution of this Agreement promptly furnish Merger Sub Purchasers, upon request, with (i) mailing labels containing the names and addressees addresses of all record Company StockholdersShareholders, (ii) security position listings of Common Shares held in stock depositories and (iii) a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories(NOBO) list, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Common Shares. The Company shall, or shall promptly cause its agents to, furnish Merger Sub Purchasers upon request with such additional information, including including, without limitation, updated lists listings and computer files of stockholdersShareholders, mailing labels and security position listings, and such other information and assistance in disseminating the Offer Documents to holders of Common Shares as Merger Sub or its agents Purchasers may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Law, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the MergerOffer, Parent, Merger Sub and their Affiliates, agents and advisors Purchasers shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Offer, and, if this Agreement shall be terminatedterminated in accordance with Section 7.1, will promptly shall deliver to the Company all copies of such information then in their its possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called and held on February 11June 7, 20021999, unanimously and acting on the unanimous recommendation of the Independent Committee, has, with two abstentions, (i) unanimously determined that this Agreement, the Offer, the Merger terms and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests conditions of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment are fair to and in the best interest of the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders Shares (other than Parent and its affiliates), and that the Merger Consideration is fair to the holders of Shares (other than Parent and its affiliates), (ii) unanimously approved this Agreement and the transactions contemplated hereby, including the Offer and the Merger, and declared their advisability and (iii) unanimously resolved to recommend acceptance of the Offer and approval and adoption of this Agreement and the Merger by its stockholders. The Company has been authorized by further represents that Bear Stea▇▇▇ & ▇o. Inc., the Independent Advisor to permitCommittee's independent financial advisor, subject has delivered to the prior review Independent Committee its written opinion that the Merger Consideration and consent the Merger is fair to the holders of the Independent Advisor Shares (other than Parent and its counsel (such consent not to be unreasonably withheld), the inclusion affiliates) from a financial point of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerview.
(b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement will promptly furnish Merger Sub Parent with mailing labels addressed to the record holders of the Shares and any available listing or computer file containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and security position listings lists of Company Common securities positions of Shares held in stock depositories, in each case as of a the most recent practicable date, and shall promptly furnish Merger Sub with will provide to Parent such additional informationinformation (including, including without limitation, updated lists of stockholders, mailing labels and security position listings, lists of securities positions) and such other information and assistance as Merger Sub or its agents Parent may reasonably request for the purpose of communicating in disseminating the Offer Documents to the record and beneficial Company Stockholdersholders of the Shares. Subject to the requirements of applicable Law, and except Except for such steps as are appropriate reasonably necessary to disseminate the Offer Documents and any other documents as are reasonably necessary to consummate in connection with the MergerOffer and the other transactions contemplated by this Agreement, Parent, Parent and Merger Sub and their Affiliates, agents and advisors shall hold in confidenceconfidence the information contained in any of such lists, labels and files and the additional information referred to in the preceding sentence; will use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, ; and, if this Agreement shall be is terminated, will promptly will, upon request, deliver to the Company all copies tangible embodiments of such information information, including but not limited to tangible embodiments in written form or on machine-readable media, and any copies or extracts therefrom then in their its possession; provided that it is expressly understood that this sentence shall not limit any rights that Parent or its affiliates may have under applicable law to obtain and use a list of stockholders of the Company or any other information pertaining to the Company.
(dc) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, As soon as practicable on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of day that the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such timeOffer is commenced, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance will file with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in SEC a commercially reasonable manner necessary Solicitation/Recommendation Statement pursuant to Section 14(f) of Rule 14d-9 under the Exchange 1934 Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the on Schedule 14D-9 mailed to ("SCHEDULE 14D-9") which shall reflect the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.recommendations of
Appears in 1 contract
Sources: Merger Agreement (Intek Global Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11August 29, 20022000, unanimously has by unanimous vote of the members thereof present and voting thereat, (iA) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is (collectively, the "TRANSACTIONS"), are fair from a financial point to, and in the best interests of, the holders of view Shares, (B) approved, adopted and declared advisable this Agreement and the Transactions (such approval and adoption having been made in accordance with Delaware Law, including, without limitation, Section 203 thereof) and (C) resolved to such recommend that the holders (other than Parent of Shares accept the Offer and its affiliates)tender Shares pursuant to the Offer, and approve and adopt this Agreement and the Transactions. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board described in the immediately preceding sentence. The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub Purchaser pursuant to the Offer.
(b) The As promptly as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule SCHEDULE 14D-9") that will (i) comply containing the recommendation of the Board described in all material respects with Section 2.02(a), and shall disseminate the provisions of all Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Exchange Act, and any other applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly Company, Parent and Purchaser agree to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in promptly any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by any of them specifically for use in the Schedule 14D-9 to include any information that which shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected or supplementedcorrected, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company shall promptly furnish Merger Sub Purchaser with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance in disseminating the Offer Documents to holders of Shares as Merger Sub Parent or its agents Purchaser may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Transactions, and, if this Agreement shall be terminatedterminated in accordance with Section 9.01, will promptly shall deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11meeting, 2002, unanimously has adopted resolutions: (i) determined determining that the terms of the Offer, the Merger and the other transactions contemplated by this Agreement are fair and declaring it advisable to enter into this Agreement; (ii) approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Offer and the Merger; (iii) approving the Recommendation; (iv) rendering the limitations on business combinations contained in Section 203 of the DGCL inapplicable to this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (Bv) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and electing that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders extent of the Rights; Board of Directors' power and (iv) took all actions necessary authority and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall extent permitted by applicable Law, not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, be subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration any Takeover Laws that may purport to be received by the Company Stockholders pursuant applicable to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The As promptly as practicable following the filing of the Schedule TO with the SEC pursuant to Section 1.1(c), the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the OfferSchedule TO, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the a "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal Federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such use its commercially reasonable efforts to disseminate the Schedule 14D-9 in to the mailing stockholders of the Offer Documents by Merger Sub to the Company Stockholders reasonably promptly after the commencement of the OfferOffer as required by Rule 14d-9 promulgated under the Exchange Act. To the extent practicable, the Company shall cooperate with Parent and Merger Sub in mailing or otherwise disseminating the Schedule 14D-9 with the appropriate Offer Documents to the holders of Common Shares. Subject to any Change of Recommendation in accordance with this Agreement, the Schedule 14D-9 relating to the Offer shall contain the Recommendation. The Company agrees to (i) reasonably promptly to correct the Schedule 14D-9 14D-9, if and to the extent that it shall may become false or misleading in any material respect (and each of Parent and Merger Sub, with respect to written information supplied by them it specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and shall cooperate with the Company with respect to correcting such information), (ii) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary (iii) use commercially reasonable efforts to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, Company's stockholders to the extent required by applicable federal Federal securities laws. Parent and its Merger Sub and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (and any corrections or supplements thereto) before it is filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall provide Parent and its counsel copies of Merger Sub (in writing, if written), and consult with Parent and Merger Sub regarding, any comments (written comments and telephone notification of any oral comments that or oral) the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 (and any corrections or supplements thereto) as promptly as practicable after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its Merger Sub and their counsel copies of shall be given a reasonable opportunity to review any such written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its stafforal comments and proposed responses.
(c) In connection with the Offer, the Company shall promptlyshall, or cause its transfer agent to promptly, reasonably promptly following execution of this Agreement Agreement, furnish Merger Sub Parent with (i) mailing labels containing the names and addressees addresses of all record Company Stockholdersholders of Common Shares, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a the most recent practicable date, and shall promptly furnish Merger Sub with (ii) such additional available information, including updated lists of stockholders, mailing labels and labels, security position listingslistings and computer files, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersholders of Common Shares. Subject to the requirements of applicable LawLaws, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliatesaffiliates, associates, agents and advisors advisors, shall hold in confidence, keep such information confidential and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, files only in connection with the Offer and the Merger and, should the Offer terminate or if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Metromedia International Group Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, acting upon the unanimous recommendation of the Special Committee, at a meeting duly called and held on February 11meeting, 2002, has unanimously (with T▇▇▇▇▇ ▇. ▇▇▇▇▇ and R▇▇▇▇▇▇ ▇. ▇▇▇▇▇ abstaining) adopted resolutions: (i) determined determining that this Agreement, the terms of the Offer, the Merger and the other transactions contemplated hereby, taken together, by this Agreement are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholdersits stockholders, and declaring it advisable, to enter into this Agreement; (ii) voted approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Offer and the Merger; (iii) approving the Recommendation; (iv) rendering the Rights and the limitations on business combinations contained in Section 203 of the General Corporation Law of the State of Delaware (the “DGCL”) and in Article Thirteenth of the Company’s Restated Certificate of Incorporation inapplicable to (A) approve the Offer, this Agreement and the transactions contemplated hereby, including the Merger, ; and (Bv) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and electing that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders extent of the Rights; Board of Directors’ power and authority and to the extent permitted by law, not to be subject to any “moratorium,” “control share acquisition,” “business combination,” “fair price” or other form of anti-takeover laws and regulations (ivcollectively, “Takeover Laws”) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants jurisdiction that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration may purport to be received by the Company Stockholders pursuant applicable to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to shall file with the SEC, concurrently with as promptly as practicable after the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, a an amended Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that will (i) comply in all material respects with the provisions of all applicable federal Federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include use its commercially reasonable efforts to mail such Schedule 14D-9 in to the mailing stockholders of the Company along with the Offer Documents by Merger Sub to the Company Stockholders reasonably promptly after the commencement of the OfferOffer (or, if such concurrent mailing is not commercially reasonably practicable, to mail the Schedule 14D-9 no later than 2 Business Days after the date that such Offer Documents are mailed). Subject to any Change of Recommendation in accordance with this Agreement, the Schedule 14D-9 and the Offer Documents shall contain the Recommendation. The Company agrees reasonably promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and each of Parent and Merger Sub, with respect to written information supplied by them it specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary use reasonable best efforts to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, Company’s stockholders to the extent required by applicable federal Federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall provide Parent and its counsel copies of Merger Sub (in writing, if written), and consult with Parent and Merger Sub regarding, any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 as promptly as practicable after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, reasonably promptly following execution of this Agreement furnish Merger Sub Parent with mailing labels containing the names and addressees addresses of all record Company Stockholdersholders of Shares, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall reasonably promptly furnish Merger Sub Parent with such additional information, including updated lists of stockholders, mailing labels and labels, security position listingslistings and computer files, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements holders of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionShares.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and -------------- consents to the Offer and represents and warrants that (i) the Company Board of DirectorsBoard, at a meeting duly called and held on February 11December 6, 20022000, has unanimously (iA) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders each of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents Stockholder Agreements (collectively, the provisions of any Antitakeover Laws. Subject to Section 6.4(c"Transactions"), are fair to, and in the Company consents best interests of, ------------ the holders of Shares, (B) approved, adopted and declared advisable this Agreement and the Transactions (such approval and adoption having been made in accordance with Delaware Law, including, without limitation, Section 203 thereof) and (C) resolved to recommend that the holders of Shares accept the Offer and tender Shares pursuant to the inclusion of such recommendations Offer, and, if required under Delaware Law, approve and approvals in adopt this Agreement and the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations Transactions and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor (ii) Broadview International LLC ("Broadview") has delivered to the Company Board of Directors its a written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, opinion --------- that the consideration to be received by the Company Stockholders holders of Shares pursuant to this Agreement, each of the Offer and the Merger is fair to the holders of Shares from a financial point of view (the "Fairness Opinion"). The Company hereby consents to the ---------------- inclusion in the Offer Documents of the recommendation of the Board described in the immediately preceding sentence, and the Company shall not withdraw or modify such holders (other than recommendation in any manner adverse to Purchaser or Parent and its affiliatesexcept as provided in Section 7.05(b). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and --------------- executive officers that they intend either to tender all Company Common Shares beneficially owned by them to Merger Sub Purchaser pursuant to the OfferOffer and, if applicable, to sell such Shares to the Purchaser pursuant to their respective Stockholder Agreement, or to vote such Shares in favor of the approval and adoption by the stockholders of the Company of this Agreement and the Transactions.
(b) The As promptly as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 14D9 with respect to the Offer (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply containing the -------------- Fairness Opinion and, except as provided in all material respects with Section 7.05(b), the provisions recommendation --------------- of all the Board described in Section 2.02(a), and shall disseminate the Schedule --------------- 14D9 to the extent required by Rule 14d-9 promulgated under the Exchange Act, and any other applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly Company, Parent and Purchaser agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 if and to the extent that it such information shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected or supplementedcorrected, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent Parent, Purchaser and its their counsel shall be given a reasonable opportunity to review and comment on upon the Schedule 14D-9 before it is filed (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC or disseminated to SEC. In addition, the Company Stockholders. The Company shall provide Parent Parent, Purchaser and its their counsel copies of in writing with any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel with copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffcounsel.
(c) In connection with the Offer, the The Company shall promptlyshall, or shall cause its transfer agent to promptlyto, following execution of this Agreement promptly furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company shall promptly furnish Merger Sub Purchaser with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance in disseminating the Offer Documents to holders of Shares as Merger Sub Parent or its agents Purchaser may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and Purchaser and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Transactions, and, if this Agreement shall be terminatedterminated in accordance with Section 9.01, shall ------------ deliver and will promptly use their reasonable best efforts to cause their agents to deliver to the Company all copies of such information then in their possessionpossession or control.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously has (i) unanimously determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interests of the Company's stockholders, (ii) unanimously approved this Agreement and the transactions contemplated hereby, including the Offer, the Merger and Parent's acquisition of Shares pursuant to the Stockholder's Agreements, in accordance with the requirements of the Delaware Law, (iii) subject to Section 7.04(b), unanimously resolved to recommend to its Stockholders that they tender their shares in the Offer and vote to adopt this Agreement and (iv) taken all action necessary to render the limitations on business combinations contained in Section 203 of Delaware Law inapplicable to this Agreement, the Stockholder's Agreements and the transactions contemplated hereby and thereby. The Company further represents that Morgan Stanley & Co. Incorporated has delivered to the Company's Board ▇▇ ▇▇r▇▇▇▇▇▇ its written opinion to the effect that, as of the date of such opinion, and on the basis of and subject to the assumptions set forth therein, the consideration to be paid in the Offer and the Merger is fair to the holders of Shares from a financial point of view. The Company will promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and will provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer. From and after the date of this Agreement, all such information concerning the Company's record holders and, to the extent known, beneficial holders, shall be made available to Merger Subsidiary. Subject to the requirements of applicable laws and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, Parent and Merger Subsidiary shall, until consummation of the Offer, hold in confidence the information contained in any of such labels and lists, shall use such information only in connection with the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares this Agreement and, if this Agreement shall be terminated in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent accordance with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered 11.01, shall deliver to the Company Board all copies of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion information then in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offertheir possession or under their control.
(b) The As soon as practicable on the day that the Offer is commenced (which shall not be prior to the fifth Business Day after the date hereof without the Company's consent), the Company hereby agrees to shall file with the SECSEC and disseminate to holders of Shares, concurrently with the filing by Parent in each case as and Merger Sub of the Schedule TO with respect to the Offerextent required by applicable federal securities laws, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule SCHEDULE 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities lawsthat, (ii) subject to Section 7.04(b), shall reflect the recommendations and actions of the Company Company's Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)above. The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Company, Parent and Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company Subsidiary each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it such information shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect respect. The Company agrees to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is and each amendment thereto prior to its being filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies holders of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffShares.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Novell Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsDirectors of the Company, at a meeting duly called and held on February 11June 22, 20022001, unanimously (i) determined that at which each of the Directors was present, duly approved and adopted this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby, taken togetherincluding the Offer and the Merger, are at a price and on terms fair to, advisable and in the best interests recommended that shareholders of the Company accept the Offer, tender their Common Shares pursuant to the Offer and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of determined that this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment are fair to and in the holders best interests of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each shareholders of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover LawsCompany. Subject to Section 6.4(c), the The Company hereby consents to the inclusion of such recommendations and approvals in the Offer DocumentsDocuments of such recommendation of the Board of Directors of the Company. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company its Board of Directors its has received the written Fairness Opinion that, subject to opinion (the various assumptions and qualifications set forth therein, as of the date of the "Fairness Opinion, ") of McDonald Investments Inc. (the "Financial Advisor") that the proposed consideration to be received by the Company Stockholders holders of Common Shares pursuant to this Agreement, the Offer and the Merger is fair to the holders from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerview.
(b) The Company hereby agrees to shall file with the SEC, concurrently with as promptly as practicable after the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Solicitation/ Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect . The Company shall mail such Schedule 14D-9 to the recommendations and actions shareholders of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders as promptly as practicable after the commencement of the Offer. The Schedule 14D-9 and the Offer Documents shall contain the recommendations of the Board of Directors of the Company described in Section 1.2(a) hereof. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and each of Parent and Merger SubPurchaser, with respect to written information supplied by them it specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, supplemented to be filed with the SEC and disseminated to the Company Stockholders, holders of Common Shares to the extent required by applicable federal securities laws. Parent Purchaser and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to SEC, and the Company Stockholders. The Company shall provide Parent and its counsel copies of consider any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffin good faith.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following promptly upon execution of this Agreement furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Common Shares and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub Purchaser with such the additional informationinformation reasonably available to the Company, including updated lists of stockholdersshareholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Purchaser or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersholders of Common Shares. Subject to the requirements of applicable Law, law and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate otherwise for the Mergerpurpose of effecting the transactions contemplated hereby, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidenceconfidence the materials furnished pursuant to this Section 1.2(c) , and use such information only in connection with the Offer Offer, the Merger and the Merger, the information contained in any such labels, listings and files, other transactions contemplated by this Agreement and, if this Agreement shall be is terminated, will as promptly deliver as practicable return to the Company such materials and all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase thereof in the number possession of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actionPurchaser.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11held, 2002, has unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the MergerOffer, and (B) recommend acceptance and approval by are in the best interests of the Company Stockholders of and its shareholders, (ii) approved and declared advisable this AgreementAgreement and the transactions contemplated hereby, including the Offer, in accordance with the Merger requirements of the Cayman Law and the other transactions contemplated hereby current Company Charter and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable resolved, subject to render the Company Rights Agreement inapplicable Section 5.03(b), to the Transaction Documents, recommend acceptance of the Offer by its shareholders. The Company shall promptly furnish or cause to be furnished to Parent with the most recent list of its shareholders, mailing labels and any available listing or computer file containing the Mergernames and addresses of all record holders of Shares and lists of securities positions of Shares held in share depositories, without any payment in each case true and correct as of the date on which such lists, labels or file is furnished, and shall provide to Parent such additional information (including updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in communicating the Offer to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy StatementShares. The Company represents and warrants that it has been advised by each obtained all necessary consents to include in its entirety the fairness opinion of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant Nomura International (Hong Kong) Limited, financial advisor to the Offer.
(b) The Company hereby agrees to file with the SECCompany, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, in a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that will and the Schedule 14D-9 shall include such fairness opinion in its entirety and a description of such fairness opinion.
(ib) comply in all material respects As soon as practicable on the Offer Commencement Date, the Company shall file with the provisions SEC and disseminate to holders of all Shares, in each case as and to the extent required by applicable U.S. federal securities laws, (ii) the Schedule 14D-9 that, subject to Section 5.03(b), shall reflect the recommendations and actions of the Company Board Recommendation. Each of Directors referred to in Section 1.2(a) the Company, Parent and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company Purchaser agrees to include such Schedule 14D-9 promptly correct any information provided by it for use in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall have become (or shall have become known to be) false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied or as otherwise required by them specifically for use in the Schedule 14D-9, Applicable Law. The Company shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in cause the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case to the extent required by applicable U.S. federal securities laws. Parent Parent, Purchaser and its their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 each time before it is filed with the SEC or disseminated to SEC, and the Company Stockholdersshall give reasonable and good faith consideration to any comments made by Parent, Purchaser and their counsel. The Company shall provide Parent Parent, Purchaser and its their counsel copies of with (i) any comments or other communications, whether written comments and telephone notification of any oral comments or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company those comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (to which reasonable and good faith consideration shall use its commercially reasonable efforts to respond to such comments promptlybe given), and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses including by participating with the Company or its counsel to the SEC in any discussions or its staff.
(c) In connection meetings with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionSEC.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of DirectorsDirectors has duly adopted resolutions approving the Offer, at a meeting duly called and held on February 11the Merger, 2002, unanimously (i) determined that this Agreement, the OfferTender Agreements and the acquisition of shares of Common Stock pursuant thereto, has determined that the Merger is advisable and that the terms of the Offer and the other transactions contemplated hereby, taken together, Merger are at a price and on terms fair to, advisable and in the best interests of of, the Company Company's stockholders and the Company Stockholders; (ii) voted has resolved to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders approval of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each Merger by the stockholders of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover LawsCompany. Subject to Section 6.4(c), the The Company hereby consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that Documents of the Independent Advisor has delivered to recommendation of the Company Board of Directors its written Fairness Opinion thatof the Company described in this Section 1.2(a), subject to the various assumptions and qualifications set forth therein, as right of the date Board of Directors of the Fairness Opinion, the consideration Company to be received by the Company Stockholders pursuant to this Agreement, withdraw or modify its approval or recommendation of the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined belowaccordance with Section 5.7(b) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerhereof.
(b) The Concurrently with the commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Solicitation/ Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements thereto and including the exhibits thereto, the "Schedule 14D-9") that which shall, subject to the right of the Board of Directors of the Company to withdraw or modify its approval or recommendation of the Offer in accordance with Section 5.7(b) hereof, contain the recommendation referred to in Section 1.2(a) hereof. The Schedule 14D-9 will (i) comply in all material respects with the provisions of all applicable federal securities lawslaws and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company's stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information furnished by the Parent and Merger Sub shall supplement or the information provided Purchaser for inclusion or incorporation by them specifically for use reference in the Schedule 14D-9 14D-9. The Company further agrees to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, 14D-9 to be filed with the SEC and to be disseminated to holders of the Company StockholdersShares, in each case as and to the extent required by applicable federal securities laws. Each of the Company, on the one hand, and the Parent and the Purchaser, on the other hand, agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false and misleading in any material respect and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Parent and its counsel shall be given a reasonable the opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to SEC. In addition, the Company Stockholders. The Company shall agrees to provide Parent the Parent, the Purchaser and its their counsel copies of with any comments, whether written comments and telephone notification of any oral comments or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such commentscomments or other communications. The Company shall use has been advised by each of its commercially reasonable efforts directors that as of the date hereof each such person intends to respond to tender all of the shares of Common Stock owned by such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel person pursuant to the SEC or its staffOffer.
(c) In connection with the Offer, the Company shall promptly, will promptly furnish or cause its transfer agent to promptlybe furnished to the Purchaser mailing labels, following execution of this Agreement furnish Merger Sub with mailing labels security position listings and any available listing or computer file containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common the Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub the Purchaser with such additional informationinformation (including, including but not limited to, updated lists of stockholdersholders of the Shares and their addresses, mailing labels and lists of security position listings, and such other information positions) and assistance as Merger Sub the Purchaser or its agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholdersholders of the Shares. Subject to the requirements of applicable Law, and except Except for such steps as are appropriate necessary to disseminate the Offer Documents Documents, the Parent and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors Purchaser shall hold in confidenceconfidence the information contained in any of such labels and lists and the additional information referred to in the preceding sentence, and will use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be is terminated, will promptly upon request of the Company deliver or cause to be delivered to the Company all copies of such information then in their possessionits possession or the possession of its agents or representatives.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the board of directors of the Company (the “Board of Directors”), at a meeting duly called and held on February 11, 2002, has unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interests of the Company’s stockholders, (Bii) recommend acceptance approved, adopted and approval by the Company Stockholders of declared advisable this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment to in accordance with the holders requirements of the Rights; Delaware Law and (iviii) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion thatresolved, subject to the various assumptions and qualifications set forth thereinSection 7.03(b), as to recommend acceptance of the date of Offer by the Fairness OpinionCompany’s stockholders (such recommendation, the consideration to be received by the “Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliatesBoard Recommendation”). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants advised that it has been advised by each all of its directors and executive officers that they who own Shares intend to tender all Company Common their Shares beneficially owned by them to Merger Sub pursuant to the Offer. The Company shall, or shall cause its transfer agent to, as promptly as practicable furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories (including the Depository Trust Company), in each case true and correct as of the most recent practicable date, and shall provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance in communicating with the record and beneficial owners of the Shares as Parent may reasonably request in connection with the Offer.
(b) The On the Offer Commencement Date, as soon as practicable after the Schedule TO has been filed, the Company hereby agrees to shall file with the SECSEC and disseminate to holders of Shares, concurrently with the filing by Parent in each case as and Merger Sub of the Schedule TO with respect to the Offerextent required by applicable U.S. federal securities laws, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that, subject to Section 7.03(b), shall include the Company Board Recommendation, provided, however, that will for so long as the Board of Directors shall not have made an Adverse Recommendation Change, at the Company’s request, Parent and Merger Subsidiary shall, at their own expense, disseminate any Schedule 14D-9 required to be disseminated to holders of Shares. The Company represents that the Schedule 14D-9 shall include in their entirety the separate fairness opinions of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and Leerink Partners LLC (itogether, the “Company Financial Advisors”) and a description of such fairness opinions and the financial analyses relating thereto. The Schedule 14D-9 shall also contain the notice of appraisal required to be delivered by the Company under Section 262(d) of Delaware Law at the time the Company first files the Schedule 14D-9 with the SEC. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions requirements of the Company Board of Directors referred to in Section 1.2(a) 1934 Act and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)all other Applicable Law. The Company agrees to include such Schedule 14D-9 in the mailing Each of the Offer Documents by Company, Parent and Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company Subsidiary agrees promptly to correct any information provided by it or any of their respective Affiliates for use in the Schedule 14D-9 if and to the extent that it such information shall have become (or shall have become known to be) false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, respect. The Company shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in cause the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case to the extent required by applicable U.S. federal securities lawslaws or the rules and regulations of Nasdaq. Parent will furnish to the Company the information relating to Parent or Merger Subsidiary required by the 1934 Act to be set forth in the Schedule 14D-9. Parent, Merger Subsidiary and its their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 each time before it is filed with the SEC or disseminated to SEC, and the Company Stockholdersshall give reasonable and good faith consideration to any comments made by Parent, Merger Subsidiary and their counsel. The Company shall promptly provide Parent Parent, Merger Subsidiary and its their counsel copies of with (i) any comments or other communications, whether written comments and telephone notification of any oral comments or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such commentsthose comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given). The Company shall use its commercially reasonable best efforts to respond give Parent the opportunity to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by participate with the Company or its counsel to the SEC in any substantive discussions or its staff.
(c) In connection meetings with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionSEC.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (aA) The Company Audits hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called and held on February 11January 19, 20021999, unanimously (i) determined that at which a majority of the Directors were present, duly approved and adopted this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in including the best interests of the Company Offer and the Company Stockholders; (ii) voted Merger, recommended that the stockholders of Audits accept the Offer, tender their Audits Shares pursuant to (A) the Offer and approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of determined that this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment are fair to and in the holders best interests of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each stockholders of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferAudits.
(bB) The Company hereby agrees to Audits shall file with the SEC, concurrently with as promptly as practicable after the filing by Parent and Merger Sub Acquisition of the Schedule TO 14D-1 with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal Federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include Audits shall mail such Schedule 14D-9 in to the mailing stockholders of Audits along with the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company Schedule 14D-9 and the Offer Documents shall contain the recommendations of the Board of Directors described in Section 1.2(a) hereof. Audits agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger SubAcquisition, with respect to written information supplied by them it specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel Audits of any required corrections of such information and cooperate with the Company Audits with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company Audits shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, Audits's stockholders to the extent required by applicable federal Federal securities laws. Parent Acquisition and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffSEC.
(cC) In connection with the Offer, the Company Audits shall promptly, or cause its transfer agent to promptly, following promptly upon execution of this Agreement furnish Merger Sub Acquisition with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Audits Shares and security position listings of Company Common Audits Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub Acquisition with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Acquisition or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements holders of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionAudits Shares.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting meetings duly called and duly held on February 11August 1, 20021997 and August 13, unanimously 1997, has (iA) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Mergerincluding, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to limitation, each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is (the "Transactions"), are fair from a financial point to and in the best interests of view to such the holders (of Shares other than Parent and its affiliates). The Company has been authorized by subsidiaries, (B) approved and adopted this Agreement and the Independent Advisor Transactions (which approval expressly included the approval of the foregoing for the purposes of Section 912 of the New York Business Corporation Law, as amended [the "BCL"]) and (C) resolved to permitrecommend, subject to the prior review and consent conditions set forth herein, that the stockholders of the Independent Advisor Company accept the Offer and its counsel approve and adopt this Agreement and the Transactions. Subject to the fiduciary duties of the Board under applicable law as advised by outside counsel, the Company hereby consents to the inclusion in the Registration Statement and Offer Documents of the recommendation of the Board described above. ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Limited Partners L.P., a Georgia limited partnership (such consent not to be unreasonably withheldthe "Stockholders"), who are the inclusion owners of in excess of 59% of the Fairness Opinion in the Offer Documentsoutstanding Shares, the Schedule 14D-9 (as defined below) have executed and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant delivered to the OfferParent and Subsidiary a Stockholders Agreement of even date herewith.
(b) The As soon as reasonably practicable after the date of commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with containing, subject only to the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions fiduciary duties of the Company Board under applicable law as advised in writing by outside counsel, the recommendation of Directors referred to the Board described in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in disseminate the Schedule 14D-9 to include the extent required by Rule 14D-9 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any information that shall become necessary in order to make the statements thereinother applicable federal securities laws. The Company, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the Subsidiary agree to correct promptly any information provided by any of them specifically for use in the Schedule 14D-9 to include any information that shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent Parent, Subsidiary and its their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed and any amendments thereto prior to the filing thereof with the SEC or disseminated to the Company StockholdersSEC. The Company shall will provide Parent and its Subsidiary and their counsel copies with a copy of any written comments and telephone or telephonic notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, thereof and shall will provide Parent and its Subsidiary and their counsel copies with a copy of any written responses and telephonic notification of any verbal responses by oral response of the Company or its counsel to the SEC or its staffcounsel.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following promptly after the execution and delivery of this Agreement furnish Merger Sub Subsidiary with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings listing of Company Common Shares held in stock depositories, each as of a the most recent datedate reasonably practicable, together with all other available listings and computer files containing names, addresses and security position listings of record holders and non-objecting beneficial owners of Shares as of the most recent date reasonably practicable. The Company shall promptly furnish Merger Sub Subsidiary with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listingsposition, and such other information and assistance as Merger Sub or its Parent, Subsidiary and their agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Law, law and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Subsidiary shall hold in confidenceconfidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminatedterminated in accordance with Section 10.1, will shall deliver promptly deliver to the Company all copies of such information then in their possessionpossession and shall certify in writing to the Company its compliance with this Section 1.2(c).
(d) Promptly following In the acceptance for payment event that the Offer is completed as contemplated by this Article I, the Merger shall be consummated as soon as practicable thereafter in accordance with the provisions of Article II hereof; provided, however, that in the event the Offer is completed and payment for Company Common Subsidiary receives at least 90% of the outstanding Shares by Merger Sub pursuant to as a result of the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of not be required to distribute the Company Board of Directors to include individuals designated by Merger Sub constituting up Proxy Statement (as defined in Section 8.2) or hold the Stockholders Meeting (as defined in Section 8.3).
(e) In the event that the Offer is not completed because the conditions to the same percentage Offer shall not have been satisfied, and provided this Agreement has not been and is not terminated pursuant to Section 10.1 hereof, at the option of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shallParent, upon request exercised by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected written notice given to the Company Board within fifteen (15) days after expiration of Directors the Offer, the Company shall submit this Agreement and the transactions contemplated hereby to its stockholders pursuant to Section 8.3 hereof and, if the Merger is as a result thereof approved, the Merger shall be consummated in accordance with the terms provisions of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors Article II hereof as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors soon as practicable in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action4.5.
Appears in 1 contract
Sources: Merger Agreement (Comforce Corp)
Company Action. (a) The Company hereby approves of and -------------- consents to the Offer and the Merger and represents and warrants that the Company that, subject to Section 7.8(b), its Board of Directors, Directors (at a meeting duly called and held on February 11, 2002, unanimously held) has by the unanimous vote of all directors present (iA) determined that each of this Agreement, the Offer, Offer and the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable to and in the best interests of the Company and the Company Stockholders; Company's stockholders, (iiB) voted to (A) approve approved this Agreement and the transactions contemplated hereby, including the Offer and the Merger, and (B) recommend acceptance and such approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable is sufficient to render the Company Rights Agreement restrictions on "business combinations" (as defined in Section 203 of the General Corporation Law of the State of Delaware) set forth in Section 203 of the General Corporation Law of the State of Delaware inapplicable to this Agreement and the Transaction Documentstransactions contemplated hereby, including the Offer and the Merger, without any payment and (C) declared the advisability of this Agreement and resolved to recommend acceptance of the Offer and adoption of this Agreement by the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover LawsShares. Subject to Section 6.4(c), the The Company hereby consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such Documents of the recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that of the Independent Advisor has delivered to the Company Company's Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to described in this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliatesSection 2.3(a). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to shall file with the SEC, concurrently with as soon as practicable on the filing by Parent and Merger Sub date of the Schedule TO with respect to commencement of the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits or amendments thereto, the "Schedule 14D-9") that containing the -------------- recommendations of the Board of Directors of the Company in favor of the Offer and the adoption of this Agreement and the transactions contemplated hereby, including the Merger, and shall promptly mail the Schedule 14D-9 to the stockholders of the Company. Parent will (i) promptly supply to the Company in writing, for inclusion in the Schedule 14D-9, any information concerning Parent or Purchaser required under the Exchange Act and the rules and regulations thereunder to be included in the Schedule 14D-9. The Schedule 14D-9 will comply in all material respects with the provisions of all applicable federal securities lawslaws and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company's stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied by Parent and Merger Sub shall supplement the information provided by them specifically or Purchaser in writing for use inclusion in the Schedule 14D-9 14D-9. The Company further agrees to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, 14D-9 to be filed with the SEC and to be disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of the Company, Parent and its Purchaser shall promptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall be or have become false or misleading in any material respect and the Company shall take all action necessary to cause the Schedule 14D-9 as so corrected to be filed promptly with the SEC and disseminated to the holders of Shares as and to the extent required by applicable law. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed and any amendments thereto prior to the filing thereof with the SEC or disseminated to the Company StockholdersSEC. The Company shall agrees to provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Parent and Purchaser with mailing labels labels, security position listings, any non-objecting beneficial owner lists and all available listings or computer files containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common Shares held in stock depositories, each as of a recent date, the latest practicable date and shall promptly furnish Merger Sub Parent and Purchaser with such additional information, information and assistance (including updated lists of stockholders, mailing labels labels, lists of security positions and security position listings, non-objecting beneficial owner's lists) as Parent and such other information and assistance as Merger Sub Purchaser or its their agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements holders of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionShares.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Atpos Com Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that (i) the Company Board of DirectorsBoard, at a meeting duly called and held on February 11November 20, 20021997, has unanimously (iA) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders each of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment are fair to and in the best interests of the holders of the Rights; Shares, (B) approved and (iv) took all actions necessary adopted this Agreement and advisable to render inapplicable to each of the transactions contemplated by hereby and (C) recommended that the Transaction Documents stockholders of Company accept the provisions of any Antitakeover Laws. Subject to Section 6.4(c)Offer and approve and adopt this Agreement and the transactions contemplated hereby, the Company consents and (ii) Credit Suisse First Boston Corporation ("FIRST BOSTON") has rendered to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants Board its opinion that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders holders of Shares pursuant to this Agreement, each of the Offer and the Merger is fair to the holders of Shares from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permitview, subject to the prior review assumptions and consent of the Independent Advisor qualifications contained in such opinion, and its counsel (such consent not which shall be confirmed promptly in writing. Company hereby consents to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer DocumentsDocuments of the recommendation of the Board described in the immediately preceding sentence. Assuming that neither Parent nor Purchaser are Interested Stockholders (as such term is defined in Section 203 of the GCL) immediately prior to the Board taking the action described in this Section 1.2, the Schedule 14D-9 approval set forth in clause (as defined belowa)(i) and shall, among other things, satisfy the Proxy Statementrestrictions on business combinations contained in Section 203 of the GCL with respect to the transactions contemplated hereby. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender vote all Company Common Shares beneficially owned by them to Merger Sub pursuant to in favor of the Offerapproval and adoption by the stockholders of Company of this Agreement and the transactions contemplated hereby.
(b) The As soon as reasonably practicable on or after the date of commencement of the Offer, Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule SCHEDULE 14D-9") that will (i) comply in all material respects with containing the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions recommendation of the Company Board of Directors referred to described in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in disseminate the Schedule 14D-9 to include the extent required by Rule 14d-9 promulgated under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and any information that shall become necessary in order to make the statements thereinother applicable federal securities laws. Company, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the Purchaser agree to correct promptly any information provided by any of them specifically for use in the Schedule 14D-9 to include any information that which shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps reasonably necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. Company shall promptly furnish Merger Sub Purchaser with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent, Purchaser or its their agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidenceconfidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminatedterminated in accordance with Section 7.1, will promptly shall deliver to the Company all copies of such information then in their or their agents' possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Shared Technologies Fairchild Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that (i) the Company Board of DirectorsCompany's Board, at a meeting duly called and held on February 11October 14, 20021999, has unanimously (iA) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders each of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment are fair to and in the best interests of the shareholders of the Company (the "Shareholders"), (B) approved and adopted this Agreement and the transactions contemplated hereby and (C) resolved to recommend that the Shareholders of the Company accept the Offer and approve and adopt this Agreement and the transactions contemplated hereby, subject to the holders of the RightsCompany's rights under Section 6.4 hereof; and (ivii) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c)Advest, the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor Inc. has delivered to the Company Company's Board of Directors its a written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, opinion that the consideration to be received by the Company Stockholders holders of Shares pursuant to this Agreement, each of the Offer and the Merger is fair to the holders of Shares from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Advisor to permit, subject hereby consents to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, Documents the Schedule 14D-9 (as defined below) recommendation of the Company's Board described above and the Proxy Statement. The Company represents and warrants that it has been advised opinion obtained by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferCompany's investment bankers, described above.
(b) The As soon as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will containing the recommendation of the Company's Board described in Section 1.2(a), subject to the Company's rights under Section 6.4 hereof, and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9, promulgated under the Securities Exchange Act of 1934 (i) comply in all material respects with the provisions of all "Exchange Act"), and any other applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in Company, Ferrotec, and the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly agree to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in promptly any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by any of them specifically for use in the Schedule 14D-9 to include any information that which shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent Ferrotec, Merger Sub and its their counsel shall be given a reasonable the opportunity to review and comment on upon the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offeraddition, the Company shall promptlyagrees to provide Ferrotec, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliatescounsel in writing with any comments, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates whether written or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.oral,
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11December [ ], 20022005, unanimously the Company Board (i) determined that this Agreement, the Offer, and this Agreement and the transactions contemplated thereby and hereby (including the Merger and the other transactions contemplated hereby, taken together, Second Merger) are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; stockholders, (ii) voted to (A) approve approved and adopted this Agreement and the transactions contemplated hereby, including the Offer, the Merger, and (B) recommend acceptance the Second Merger in all respects in accordance with Delaware law, and such approval by the Company Stockholders constitutes approval of this Agreement, the Offer, this Agreement and the Merger and for all purposes of Section 203 of the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares DGCL (as described in the Offer; Section 4.04(b)), (iii) approved and adopted an amendment to the terms of the Company Rights Agreement (as defined in Section 3.01(f)) and took all other action actions necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction DocumentsParent, Merger Sub, the Offer Offer, this Agreement and the MergerMerger (such action, without any payment to collectively, the holders of the Rights; "Rights Plan Amendment"), and (iv) took all actions necessary and advisable resolved to render inapplicable to each recommend that the stockholders of the transactions contemplated Company tender their Shares to Merger Sub pursuant to the Offer and that the stockholders of the Company adopt and approve this Agreement and the Merger if stockholder approval is required by the Transaction Documents DGCL; provided, however, that such recommendation may be withdrawn, modified or amended if permitted by Section 6.03 and subject to the provisions payment of any Antitakeover Lawsapplicable fees resulting from such action as provided in Section 6.09. Subject to Section 6.4(c), the The Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations Documents and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, Information Statement.
(i) As promptly as of practicable after the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect SEC an amendment to the Offer, a Tender Offer its Solicitation/Recommendation Statement on Schedule 14D-9 originally filed on December 5, 2005, with respect to the Offer, reflecting the Company Board's recommendation that the Company's stockholders accept and tender Shares pursuant to the Offer, the Company Board's approval of this Agreement and otherwise reflecting the terms and conditions of this Agreement and including the information regarding Parent's designees to the Company Board pursuant to Section 1.03 to the extent Parent shall have theretofore provided the information required by Section 1.03(b) (together with any and all amendmentssuch Schedule 14D-9, supplements and exhibits theretoas amended or supplemented from time to time, the "Schedule 14D-9"), (ii) that if (x) following the completion of the Offer and any exercise of the Top-Up Option, consummation of the Merger under Section 253 of the DGCL as contemplated by Section 1.05 is not permitted by the terms of Section 253 of the DGCL and (y) Parent delivers to the Company a written consent of the holders of Shares in accordance with Section 228 of the DGCL duly adopting this Agreement under Section 251 of the DGCL and so requests, the Company shall as promptly as reasonably practicable file with the SEC an Information Statement on Schedule 14C (as amended or supplemented from time to time, the "Information Statement"), describing the Merger and the Second Merger and including such information regarding Parent, Merger Sub, the Company and the terms and approval of such transactions as is required by such form and under applicable Law, and (iii) shall disseminate the Schedule 14D-9 and the Information Statement to the holders of Shares at the times and to the extent required by applicable Laws. The Schedule 14D-9 (including the information regarding Parent's designees to the Company Board) and the Information Statement will (i) comply in all material respects with the provisions of all applicable federal securities lawslaws and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company's stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied by Parent or Merger Sub in writing for inclusion in the Schedule 14D-9 or the Information Statement. Each of Parent and Merger Sub shall supplement promptly furnish to the Company all information concerning Parent and Merger Sub that is required or reasonably requested by the Company in connection with such actions. The Company, Parent and Merger Sub each agrees promptly to correct any information provided by them specifically it for use in the Schedule 14D-9 or the Information Statement if and to include the extent that it shall have become false or misleading in any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)material respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 and the Information Statement as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of the Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company StockholdersLaws. The Company shall further agrees to promptly advise Parent of any comments or other communications (and promptly provide Parent and its counsel copies of any such written comments and telephone notification materials or reasonably detailed summaries of any oral comments communications) that the Company or its counsel or representatives may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt or any other securities filings of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel related to the SEC Offer, the Merger or its staffthe transactions contemplated hereby or thereby.
(c) In connection with the OfferOffer and the mailing of the Offer Documents and the Information Statement, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement will promptly furnish Parent and Merger Sub with mailing labels labels, security position listings and any available listing or computer files containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common the Shares held in stock depositories, each as of a the most recent date, date practicable and shall promptly furnish Merger Sub with such additional informationinformation and assistance (including, including without limitation, updated lists of stockholdersstockholder lists, mailing labels and security position listings, and such other information and assistance lists of securities positions) as Merger Sub or its agents may reasonably request for the purpose of in communicating the Offer or the matters subject to the Company Stockholder Approval (as defined in Section 4.04(a)) to the record and beneficial Company Stockholdersholders of Shares. Subject to the requirements of applicable Law, and except Except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer, the Merger or the Second Merger, Parent, Merger Sub and their Affiliatesrespective affiliates, associates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and filesfiles only in connection with the Offer and the Merger, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following possession promptly upon the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Inamed Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company its Board of Directors, at a meeting duly called and held on February 11held, 2002, unanimously has (i) by unanimous vote of all directors of the Company, determined that this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby, taken together, Transactions are at a price and on terms fair to, advisable to and in the best interests of the Company and the Company Stockholders; Company's stockholders, (ii) voted to (A) approve by unanimous vote of all directors of the Company, approved and adopted this Agreement and the transactions contemplated herebyTransactions in accordance with the requirement of the DGCL, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took by unanimous vote of all other action necessary and advisable to render directors of the Company Rights declared that this Agreement inapplicable to the Transaction Documentsis advisable, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took by unanimous vote of all actions necessary and advisable to render inapplicable to each directors of the transactions contemplated by Company, resolved to recommend that the Transaction Documents stockholders of the provisions Company accept the Offer and tender their shares of any Antitakeover LawsCompany Common Stock pursuant to the Offer and adopt this Agreement and approve the Merger (the recommendation of the Company's Board of Directors that the stockholders of the Company accept the Offer and tender their shares of Company Stock pursuant to the Offer and adopt this Agreement and approve the Merger being referred to as the "Company Board Recommendation"). Subject to Section 6.4(c)5.12, the Company hereby consents to the inclusion of such recommendations and approvals the Company Board Recommendation in the Offer Documents. The Further, the Company shall not withdraw, modify or fail represents that it has engaged a financial advisor to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered deliver to the Company Company's Board of Directors its a written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, opinion that the consideration to be received by the holders of the shares of Company Stockholders Common Stock pursuant to this Agreement, each of the Offer and the Merger is fair to the holders of the shares of Company Common Stock from a financial point of view to such holders (other than Parent and its affiliatesthe "Fairness Opinion"). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The As promptly as practicable on the day that the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act), the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent SEC and Merger Sub disseminate to holders of the Schedule TO with respect shares of Company Common Stock, in each case as and to the Offerextent required by applicable federal securities laws, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with any and all amendmentsexhibits, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that will containing the Fairness Opinion (ito the extent not withdrawn) comply and, subject to Section 5.12, the Company Board Recommendation described in all material respects with Section 1.2(a), and shall disseminate the provisions of all Schedule 14D-9 to the extent required by Rule 14D-9 promulgated under the Exchange Act, and any other applicable federal securities laws. Each of Parent, (ii) reflect the recommendations Purchaser and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly agree to correct promptly any information provided by it for use in the Schedule 14D-9 if and to the extent that it which shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected or supplementedcorrected, to be filed with the SEC and or disseminated to holders of shares of the Company StockholdersCommon Stock, in each case as and to the extent required by applicable federal securities laws. The Company shall give Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is prior to such document being filed with the SEC or disseminated to the holders of the shares of Company StockholdersCommon Stock. The Company shall provide Parent and its counsel copies of with any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel with a reasonable opportunity to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase participate in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee response of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actioncomments.
Appears in 1 contract
Company Action. (a) The board of directors of the Company hereby approves of and consents to adopted resolutions: (i) unanimously determining that the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11, 2002, unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement its shareholders, unanimously adopting and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of declaring advisable this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by unanimously resolving to recommend to the Transaction Documents and holders of Shares that such holders shareholders tender their Company Common Shares in the Offer; Offer or otherwise approve the “plan of merger” (as such term is used in Section 23-1-40 of the IBCL) (the “Company Board Recommendation”), (ii) directing that, to the extent required by the IBCL, this Agreement and the Merger be submitted to the holders of Shares for their approval of the “plan of merger” contained in this Agreement at a shareholders’ meeting duly called and held for such purpose, (iii) took assuming that Parent, Merger Sub and their respective affiliates collectively beneficially own less than 10% of the outstanding Shares, taking all other action necessary and advisable steps to render Sections 23-1-42 and 23-1-43 of the Company Rights Agreement IBCL inapplicable to the Transaction Documents, Parent and Merger Sub and to the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable resolving to render inapplicable elect, to each of the transactions contemplated extent permitted by the Transaction Documents the provisions of any Antitakeover applicable Laws. Subject to Section 6.4(c), for the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheldsubject to any “fair price,” “moratorium,” “control share acquisition,” or other similar Indiana anti-takeover statute or regulation (each, a “Takeover Statute”), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The On the date the Offer Documents are filed with the SEC if practicable and otherwise reasonably promptly thereafter, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that will (i) comply in all material respects with the provisions of all applicable federal Federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond mail such Schedule 14D-9 to such comments promptly, and shall provide Parent and its counsel copies the shareholders of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection along with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders reasonably promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.the
Appears in 1 contract
Sources: Merger Agreement (Biomet Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11October 27, 20022003, has unanimously (i) determined that this AgreementAgreement and the Option Agreements and the transactions contemplated hereby (including the Offer and the Merger) and thereby (collectively, the Offer, the Merger and the other transactions contemplated hereby, taken together, "Transactions") are at a price and on terms fair to, advisable and in the best interests of, the holders of the Company and the Company Stockholders; Shares, (ii) voted to (A) approve this Agreement approved, adopted and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of declared advisable this Agreement, the Offer, the Merger Option Agreements and the other transactions contemplated hereby Transactions (such approval and by adoption having been made in accordance with the Transaction Documents DGCL) and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable subject to render Section 9.02, resolved to recommend that the Company Rights Agreement inapplicable to the Transaction Documents, holders of Shares accept the Offer and the Merger, without any payment tender Shares pursuant to the holders of Offer, and, if required under the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover LawsDGCL, adopt this Agreement. Subject to Section 6.4(c)9.02, the Company hereby consents to the inclusion of such recommendations and approvals in the Offer DocumentsDocuments of the recommendation of the Company Board described in this Section 3.03(a). The Subject to Section 9.02, neither the Company Board nor any committee thereof shall not (i) withhold, withdraw, amend, change or modify any approval or fail to reaffirm such recommendations and approvals recommendation of the Transactions in any manner inconsistent adverse to Purchaser or Parent, (ii) approve or recommend, or propose to approve or recommend, any other merger or other offer to the stockholders of the Company or (iii) enter into any agreement with Section 6.4(c)respect to any other merger or other offer to the stockholders of the Company. The Company hereby represents and warrants Notwithstanding the foregoing, in the event that the Independent Advisor has delivered to the Company Board of Directors determines in good faith that it is required to do so by its written Fairness Opinion thatfiduciary duties under Law after consultation with outside legal counsel, subject to the various assumptions and qualifications set forth thereinCompany Board may withhold, as withdraw, amend, change or modify its approval or recommendation of the date of Offer or the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy StatementMerger. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend intend, as of the date of this Agreement, to tender all Company Common Shares beneficially owned by them to Merger Sub Purchaser pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that its Board of Directors has determined by a unanimous vote that the Company Board of Directors, at a meeting duly called Offer and held on February 11, 2002, unanimously (i) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of of, the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated herebyits stockholders, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, has approved the Offer and the Merger, without any payment has approved and adopted this Agreement, and has resolved to recommend acceptance of the Offer to, and adoption of this Agreement by, the Company's stockholders (it being understood that, notwithstanding anything in this Agreement to the holders contrary, if the Company's Board of the Rights; and (iv) took all actions necessary and advisable Directors shall conclude, acting in good faith, after receiving advice from outside counsel or its financial advisor, that failure to render inapplicable to each modify or withdraw its recommendation would constitute a breach of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c)their fiduciary duties under applicable law, the Company consents to the inclusion Board of Directors may so modify or withdraw its recommendation and such recommendations and approvals in the Offer Documents. The Company modification or withdrawal shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(cconstitute a breach of this Agreement). The Company hereby further represents and warrants that the Independent Advisor ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated has delivered its written opinion to the Company Board of Directors its written Fairness Opinion of the Company that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinionhereof, the consideration to be received by the Company Stockholders holders of Shares pursuant to this Agreement, the Offer and the Merger is fair to such holders from a financial point of view view. Contemporaneously with the commencement of the Offer, but in no event prior to such holders (other than Parent and its affiliates). The Company date as the Purchaser has been authorized by filed the Independent Advisor to permit, subject to Tender Offer Documents with the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld)Commission, the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent Commission and Merger Sub mail to holders of the Schedule TO with respect to the Offer, record and beneficial owners of Shares a Tender Offer Solicitation/Recommendation Statement on Schedule SCHEDULE 14D-9 with respect to the Offer (together with any and all amendmentssuch SCHEDULE 14D-9, supplements and exhibits theretoas amended from time to time, the "Schedule SCHEDULE 14D-9") that will (i) comply in all material respects with ), which shall contain the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions recommendation of the Company Company's Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 set forth in the mailing of the Offer Documents by Merger Sub to preceding sentence. Parent, Purchaser and the Company Stockholders promptly after the commencement of the Offer. The Company agrees each agree promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC Commission and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect time to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement time furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub Purchaser with such additional information, if any, including updated or additional lists of stockholders, mailing labels and security position listingslists of securities positions, and such other information and assistance as Merger Sub or its agents the Purchaser may reasonably request for the purpose of communicating in order to be able to communicate the Offer to the record and beneficial Company Stockholdersstockholders of the Company. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the MergerDocuments, Parent, Merger Sub Purchaser and each of their Affiliates, agents respective affiliates and advisors associates shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any of such labelslists, listings and files, labels or additional information and, if this Agreement shall be is terminated, will shall promptly deliver redeliver to the Company all copies (of whatever nature) of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Agreement and Plan of Merger (World Color Press Inc /De/)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 1119, 20021999, unanimously at which all of the Directors were present, duly and unanimously: (i) determined that approved and adopted this AgreementAgreement and the Company Stock Option Agreement and the transactions contemplated hereby and thereby, including the Offer, the Merger Merger, the Employment Agreements and Parent's acquisition of Shares pursuant to the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company StockholdersStockholders Agreement; (ii) voted recommended that the stockholders of the Company accept the Offer, tender their Shares pursuant to (A) the Offer and approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary determined that this Agreement and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentstransactions contemplated hereby, including the Offer and the Merger, without any payment are fair to and in the holders best interests of the Rightsstockholders of the Company; and (iv) took all actions action necessary and advisable to render the limitations on business combinations contained in Section 203 of Delaware Law and the Company's Restated Certificate of Incorporation (the "Restated Certificate") inapplicable to each this Agreement, the Company Stock Option Agreement, the Stockholders Agreement and the transactions contemplated hereby and thereby; and (v) approved an amendment to the Rights Agreement, in the form of Exhibit 1.2 hereto (the "Rights Agreement Amendment"), providing that (A) neither this Agreement, the Company Stock Option Agreement or the Stockholders Agreement nor any of the transactions contemplated hereby or thereby, including the Offer and the Merger, will result in the occurrence of a "Distribution Date" (as such term is defined in the Rights Agreement) or otherwise cause the Rights to become exercisable by the Transaction Documents holders thereof and (B) the provisions Rights shall automatically on and as of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion Effective Time (as hereinafter defined) be void and of such recommendations and approvals in the Offer Documentsno further force or effect. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby further represents and warrants that the Independent Advisor (x) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation ("DLJ") has delivered rendered to the Company Board of Directors its a written Fairness Opinion opinion, dated as of February 19, 1999, to the effect that, subject to the various assumptions and qualifications limitations set forth therein, as of the date of the Fairness Opinion, the consideration $29.00 in cash per Share to be received by the stockholders of the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair to such stockholders from a financial point of view to and (y) a true and correct copy of such holders (other than Parent and its affiliates). The Company opinion has been authorized by the Independent Advisor delivered to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferParent.
(b) The Company hereby agrees to file with the SEC, concurrently with as promptly as practicable after the filing by Parent and Merger Sub Purchaser of the Schedule TO 14D-1 with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) will comply in all material respects with the provisions of all applicable federal Federal securities laws, laws and (ii) reflect will include the recommendations and actions opinion of the Company Board of Directors DLJ referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c)hereof. The Company agrees to include mail such Schedule 14D-9 in to the mailing stockholders of the Company along with the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Schedule 14D-9 and the Offer Documents shall contain the recommendations of the Board of Directors described in Section 1.2(a) hereof. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and each of Parent and Merger SubPurchaser, with respect to written information supplied by them it specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, Company's stockholders to the extent required by applicable federal Federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall provide Parent and its counsel copies of Purchaser in writing with any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following promptly upon execution of this Agreement furnish Merger Sub Parent with mailing labels containing the names and addressees addresses of all record Company Stockholdersholders of Shares, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub Parent with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements holders of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession▇▇▇▇▇▇.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsDirectors of the Company (the "COMPANY BOARD"), at a meeting duly called and held on February 11held, 2002, unanimously (i) determined that duly adopted resolutions approving this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Option Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction DocumentsStockholders Agreement, the Offer and the Merger, without any payment to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth thereindetermining, as of the date of such resolutions, that the Fairness Opinionterms of the Offer and the Merger are fair to, and in the best interests of, the Company's stockholders, recommending that the Company's stockholders accept the Offer, tender their shares pursuant to the Offer and approve this Agreement (if required), and approving the acquisition of shares of Company Common Stock by Merger Sub pursuant to the Offer and the other transactions contemplated by this Agreement. The Company hereby consents to the inclusion in the Offer Documents, the Schedule 14D-9 and the Proxy Statement (if any) of such recommendation of the Company Board. The Company hereby represents that the Company Board has received the written opinion (the "FAIRNESS OPINION") of Broadview Associates LLC (the "FINANCIAL ADVISOR") that the consideration to be received by the holders of Company Stockholders Common Stock pursuant to this Agreement, the Offer and the Merger is fair to such holders from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Financial Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), permit the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy StatementStatement (if any). The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend each such person currently intends to tender all shares of Company Common Shares beneficially Stock owned by them to Merger Sub such person pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent Promptly upon execution of this Agreement and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with such information (including a list of the stockholders of the Company, mailing labels containing the names and addressees a list of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositoriessecurities positions, each as of a recent date), and shall promptly furnish thereafter render such assistance, as Parent or Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actionstockholders.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11July 8, 2002, unanimously : (i) determined that approved and adopted this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in including the best interests of the Company Offer and the Company StockholdersMerger; (ii) voted recommended that the stockholders of the Company accept the Offer, tender their Shares pursuant to (A) the Offer and approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary determined that this Agreement and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentstransactions contemplated hereby, including the Offer and the Merger, without any payment are fair to and in the holders best interests of the Rightsstockholders of the Company; and (iv) took all actions action necessary and advisable to render inapplicable to each the limitations on business combinations contained in Section 203 of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant Delaware Law inapplicable to this Agreement, and the transactions contemplated hereby and thereby; and (v) waived the restrictions on transferring Shares contained in the Company's Amended and Restated Certificate of Incorporation (the "Restated Certificate") only to the extent necessary to permit (x) holders of Shares to tender their Shares in the Offer and the Merger is fair from a financial point of view (y) Purchaser to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion purchase validly tendered Shares in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub Purchaser of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include mail such Schedule 14D-9 in to the mailing stockholders of the Company along with the Offer Documents. The Schedule 14D-9 and the Offer Documents by Merger Sub to shall contain the Company Stockholders promptly after the commencement recommendation of the OfferBoard of Directors described in Section 1.2(a) hereof. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and each of Parent and Merger SubPurchaser, with respect to written information supplied by them it specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, Company's stockholders to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 and any supplements thereto before it is they are filed with the SEC or disseminated to the Company StockholdersSEC. The Company shall provide Parent and its counsel copies of with any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent consult with Parent, Purchaser and its their counsel copies of prior to responding to any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffcomments.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following promptly upon execution of this Agreement furnish Merger Sub Parent with mailing labels containing the names and addressees addresses of all record Company Stockholdersholders of Shares, a and (to the extent available) non-objecting beneficial owners list lists and security position listings of Company Common Shares held in stock depositories, each as of a the most recent practicable date, and shall promptly furnish Merger Sub Parent with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersholders of Shares. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents reasonably necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidenceconfidence the information held in such labels and listings, and shall use only such information solely in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be is terminated or if the Offer is otherwise terminated, will shall promptly destroy or cause to be destroyed or deliver or cause to be delivered to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase possession or in the number possession of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates their agents or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actionrepresentatives.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that (i) the Company Board of DirectorsBoard, at a meeting duly called and held on February 11March 27, 20021998, has unanimously (iA) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders each of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment are fair to and in the best interests of the holders of the Rights; Shares, (B) approved and (iv) took all actions necessary adopted this Agreement and advisable to render inapplicable to each of the transactions contemplated by hereby and (C) resolved to recommend that the Transaction Documents the provisions stockholders of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to accept the inclusion of Offer and approve and adopt this Agreement and the transactions contemplated hereby; provided, that such recommendations and approvals recommendation may be withdrawn, modified or amended if, in the Offer Documents. The Company shall not good faith opinion of the Company's Board, based upon the receipt of advice from outside independent legal counsel, failure to withdraw, modify or fail amend such recommendation is reasonably likely to reaffirm such recommendations result in the Company's Board violating its fiduciary duties to the Company's shareholders under applicable law and approvals in any manner inconsistent with Section 6.4(c(ii) ABN-AMRO Incorporated, formerly known as ABN-AMRO Chicago Corporation ("ABN-AMRO"). The Company hereby represents and warrants that the Independent Advisor , has delivered to the Company Board of Directors its a written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, opinion that the consideration to be received by the Company Stockholders holders of Shares pursuant to this Agreement, each of the Offer and the Merger is fair to the holders of Shares from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Advisor to permit, subject hereby consents to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer DocumentsDocuments of the recommendation of the Board described in the immediately preceding sentence. On or before the date hereof, the Schedule 14D-9 (Company will use its reasonable best efforts to obtain and deliver to Acquiror the Tender and Option Agreements, in the form attached as defined below) and Exhibit 1 hereto, executed by the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the OfferDirector Shareholders.
(b) The As soon as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Solicitation/ Recommendation Statement on Schedule 14D-9 (together with any all 2 6 amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with containing, subject to the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions fiduciary duties of the Company Board under applicable law as advised in writing by independent counsel, the recommendation of Directors referred to the Company Board described in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in disseminate the Schedule 14D-9 to include the extent required by Rule 14d-9 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any information that shall become necessary in order to make other applicable federal securities laws. The Company, Acquiror and the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the agree to correct promptly any information provided by any of them specifically for use in the Schedule 14D-9 to include any information that which shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent Acquiror and its counsel shall be given a reasonable the opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to SEC. In addition, the Company Stockholders. The Company shall agrees to provide Parent Acquiror, the Merger Sub and its their counsel copies of with any comments, whether written comments and telephone notification of any oral comments or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffother communications.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish the Merger Sub with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company shall promptly furnish the Merger Sub with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance as Acquiror, the Merger Sub or its their agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Acquiror and the Merger Sub and their Affiliates, agents and advisors shall hold in confidenceconfidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminatedterminated in accordance with Section 8.1, will promptly shall deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.ARTICLE II THE MERGER Section
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsDirectors of the Company (the "Board"), at a meeting duly called and held on February 11held, 2002, has unanimously adopted resolutions (i) determined determining that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to, and in the best interests of, the shareholders of the Company, (Bii) recommend acceptance approving and approval by adopting this Agreement and the Company Stockholders of this Agreementtransactions contemplated hereby, including the Offer, the Merger (as defined in Section 2.01), and the other Shareholders Tender Agreements of even date between the Purchaser and each of the Directors of the Company (the "Shareholder Tender Agreements") and the transactions contemplated thereby, in all respects and that such approval constitutes approval of the Offer, this Agreement, the Merger and the Shareholder Tender Agreements, and the transactions contemplated hereby and by thereby, for purposes of Sections 902 and 912 of the Transaction Documents New York Business Corporation Law (the "BCL") and similar provisions of any other similar state statutes that such holders tender their Company Common Shares in might be deemed applicable to the Offer; transactions contemplated hereby, and (iii) took all other action necessary and advisable to render recommending that the shareholders of the Company Rights Agreement inapplicable accept the Offer, tender their Shares thereunder to the Transaction Documents, the Offer Purchaser and approve and adopt this Agreement and the Merger; provided, without any payment however, that such recommendation may be withdrawn, modified or amended to the holders extent that the Board, by a majority vote, determines in its good faith judgment, based as to legal matters on the written opinion of legal counsel, that the Board is required to do so for the proper discharge of its fiduciary duties. The foregoing shall 11 - 7 - constitute a good faith proposal of the Rights; Parent (and the Purchaser) to acquire the Shares, and acceptance and approval of such proposal by the Board, in accordance with Section 912 of the BCL.
(ivb) took all actions necessary and advisable to render inapplicable to The Company has been advised by each of its executive officers who as of the date hereof is aware of the transactions contemplated by the Transaction Documents the provisions hereby and each of any Antitakeover Laws. Subject its Directors that each such person intends to Section 6.4(c), the Company consents tender pursuant to the inclusion of Offer all Shares owned by such recommendations and approvals in the Offer Documentsperson. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor Board has delivered to received the Company Board oral opinion of Directors its written Fairness Opinion thatDona▇▇▇▇▇, subject to ▇▇fk▇▇ & ▇enr▇▇▇▇, ▇▇corporated ("DLJ") that the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the proposed consideration to be received by the Company Stockholders holders of Shares pursuant to this Agreement, the Offer and the Merger is fair to such holders from a financial point of view and that DLJ is prepared to deliver its written opinion that the proposed consideration to be received by holders of Shares pursuant to the Offer and Merger is fair to such holders (other than Parent and its affiliates). The Company has been authorized by from financial point of view within three days from the Independent Advisor to permit, subject to the prior review and consent date of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerthis Agreement.
(bc) The Company hereby agrees to file On the date the Offer Documents are filed with the SEC, concurrently the Company shall file with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with any and all amendmentssuch Schedule 14D-9, supplements and exhibits theretoas amended from time to time, the "Schedule 14D-9"), containing the recommendation described in Section 1.02(a) that will (i) and shall mail the Schedule 14D-9 to the shareholders of the Company. The Schedule 14D-9 shall comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions requirements of the Company Board of Directors referred to in Section 1.2(a) Exchange Act and (iii) include the Fairness Opinionrules and regulations promulgated thereunder and on the date filed with the SEC and on the date first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company's shareholders, and shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied in writing by the Parent or the Purchaser specifically for inclusion or incorporation by reference in the Schedule 14D-9. Each of the Company, the Parent and Merger Sub shall supplement the Purchaser agrees promptly to correct any information provided by them specifically it for the use in the Schedule 14D-9 if and to include the extent that such information shall have become false or misleading in any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)material respect, and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9, 14D-9 as so corrected amended or supplemented, supplemented to be filed with the SEC and disseminated to the Company StockholdersCompany's shareholders, in each case as and to the extent required by applicable federal Federal securities laws. The Parent and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule 14D-9 before it is filed and all amendments and supplements thereto prior to their filing with the SEC or disseminated dissemination to shareholders of the Company StockholdersCompany. The Company shall agrees to provide the Parent and its counsel copies of in writing with any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff Staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(cd) In connection with the Offer, the Company shall promptlywill, or and will cause its transfer agent (the "Transfer Agent") to, furnish promptly to promptly, following execution of this Agreement furnish Merger Sub with the Parent and the Purchaser mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common Shares held in stock depositories, each as of a recent date and of those persons becoming record holders after such date, together with copies of all lists of shareholders and security position listing and computer files and all other information in the Company's possession and control regarding the beneficial ownership of Shares. The Company shall promptly furnish Merger Sub the Parent and the Purchaser with such additional informationinformation (including, including but not limited to, updated lists of stockholdersholders of Shares and their addresses, mailing labels and security position listings, listings and computer files) and such other information and assistance as Merger Sub the Parent and the Purchaser or its their agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements holders of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionShares.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Diebold Inc)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on February 11June 30, 20021997, unanimously at which a majority of the Directors were present: (i) determined that duly approved and adopted this Agreement, the Offer, the Merger Option Agreement and the other transactions contemplated herebyhereby and thereby, taken togetherincluding the Offer and the Merger, are at a price and on terms fair to, advisable and in recommended that the best interests stockholders of the Company accept the Offer, tender their Shares pursuant to the Offer and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of determined that this Agreement, the Offer, the Merger Agreement and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documentshereby, including the Offer and the Merger, without any payment are fair to and in the best interests of the holders of both the RightsCompany Common Stock and the Series D Shares; and (ivii) took all actions necessary and advisable with respect to render inapplicable the Rights Agreement, duly amended the Rights Agreement to each provide that (1) neither this Agreement nor any of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c)hereby, the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, including the Offer and the Merger Merger, will result in the occurrence of a "Distribution Date" (as such term is fair from a financial point of view defined in the Rights Agreement) or otherwise cause the Rights to such holders (other than Parent and its affiliates). The Company has been authorized become exercisable by the Independent Advisor to permit, subject to holders thereof and (2) the prior review Rights shall automatically on and consent as of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 Effective Time (as defined belowhereinafter defined) be void and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerno further force or effect.
(b) The Company hereby agrees to shall file with the SEC, concurrently with as promptly as practicable after the filing by Parent and Merger Sub the Purchaser of the Schedule TO 14D-1 with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendmentsamendments or supplements thereto, supplements and including the exhibits thereto, the "Schedule 14D-9") that ). The Schedule 14D-9 will (i) comply in all material respects with the provisions of all applicable federal Federal securities lawslaw and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company's stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information furnished by Parent and Merger Sub shall supplement or the information provided by them specifically Purchaser for use inclusion in the Schedule 14D-9 14D-9. The Company further agrees to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, 14D-9 to be filed with the SEC and to be disseminated to holders of the Company StockholdersShares, in each case and as and to the extent required by applicable federal Federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies mail, or cause to be mailed, such Schedule 14D-9 to the stockholders of any written comments and telephone notification of any oral comments that the Company or its counsel receive from at the SEC or its staff with respect same time the Offer Documents are first mailed to the Stockholders of the Company together with such Offer Documents. The Schedule 14D-9 promptly after receipt and the Offer Documents shall contain the recommendations of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies the Board of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.Directors 3
(c) In connection with the Offer, the Company shall promptlyCompany, or cause its transfer agent to promptly, following promptly upon execution of this Agreement Agreement, shall furnish Merger Sub with or cause to be furnished to the Purchaser mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub the Purchaser with such additional informationinformation (including, including but not limited to, updated lists of stockholdersstockholders and their addresses, mailing labels and security position listings, ) and such other information and assistance as Merger Sub the Purchaser or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements holders of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possessionShares.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and the Note Tender Offer and represents and warrants that (i) the Company Board of DirectorsBoard, at a meeting duly called and held on February 11June 25, 20021997, has unanimously (iA) determined that this Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders each of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment are fair to and in the holders best interests of the Rights; stockholders of the Company, (B) approved and (iv) took all actions necessary adopted this Agreement and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c)hereby, including, without limitation, the Company consents Merger, and such approval constitutes approval of the foregoing for purposes of Section 203 of Delaware Law, (C) taken all action to avoid the occurrence of a "Distribution Date" or a "Triggering Event" (each as defined in the Rights Agreement referred to in Section 2.06) with respect to the inclusion Rights and (D) recommended that the stockholders of such recommendations and approvals in the Company accept the Offer Documents. The Company shall not withdrawand approve and adopt this Agreement and the transactions contemplated hereby, modify or fail to reaffirm such recommendations including, without limitation, the Merger, and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor (ii) Credit Suisse First Boston Corporation ("Credit Suisse First Boston") has delivered to the Company Board of Directors its a written Fairness Opinion that, subject opinion to the various assumptions and qualifications set forth thereineffect that, as of the date of the Fairness Opinionsuch opinion, the consideration to be received by the Company Stockholders holders of Shares (other than Parent, Purchaser and their affiliates) pursuant to this Agreement, each of the Offer and the Merger is fair to such holders of Shares from a financial point of view view. Subject only to such holders (other than Parent and its affiliates). The Company has been authorized the fiduciary duties of the Board under applicable law as advised by the Independent Advisor to permitCompany's counsel, subject the Company hereby consents to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, Documents of the Schedule 14D-9 (as defined below) and recommendation of the Proxy StatementBoard described in the immediately preceding sentence. The Company represents and warrants to Purchaser that it the Company has been advised by each of its directors and executive officers that they intend either to tender or cause to be tendered all Company Common Shares beneficially owned by them to Merger Sub Purchaser pursuant to the OfferOffer or to vote such Shares in favor of the approval and adoption by the stockholders of the Company of this Agreement and the transactions contemplated hereby.
(b) The As soon as reasonably practicable on the date of commencement of the Offer, the Company hereby agrees to that it will file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will containing, subject only to the fiduciary duties of the Board under applicable law as advised by the Company's counsel, the recommendation of the Board described in Section 1.03(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Securities Exchange Act of 1934, as amended (i) comply in all material respects with the provisions of all "Exchange Act"), and any other applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly Company, Parent and Purchaser agree to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in promptly any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by any of them specifically for use in the Schedule 14D-9 to include any information that which shall have become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not false or misleading), and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent agrees to promptly, following execution of this Agreement promptly furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all record Company Stockholders, a non-objecting beneficial owners list holders of Shares and with security position listings of Company Common Shares held in stock depositories, each as of a recent date, together with all other available listings and shall promptly computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company agrees to furnish Merger Sub Purchaser with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub Parent, Purchaser or its their agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub Parent and their Affiliates, agents and advisors Purchaser shall hold in confidenceconfidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, Merger and, if this Agreement shall be terminatedterminated in accordance with Section 8.01, will promptly shall deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Ud Delaware Corp)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11held, 2002has, subject to the terms and conditions set forth herein, unanimously (i) determined that this Agreement, the Offer, the Merger it is fair and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of for Parent to acquire the Company on the terms and subject to the Company Stockholders; (ii) voted to (A) approve conditions set forth herein and approved this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment in all respects and such approval constitutes approval of the Offer, this Agreement and the Merger for purposes of the FBCA, (ii) resolved to recommend that the shareholders of the Company accept the Offer, tender their Shares in the Offer and to the holders extent required, that the shareholders of the Rights; Company approve and adopt this Agreement and the Merger (such recommendation, the “Recommendation”) and (iviii) took taken all other actions necessary to exempt the Offer, the Merger, this Agreement and advisable to render inapplicable to each of the transactions contemplated hereby from any “fair price,” “moratorium,” “control share acquisition,” “interested shareholder,” “business combination,” “affiliated transaction” or other similar statute or regulation promulgated by the Transaction Documents the provisions of any Antitakeover Lawsa Governmental Entity (“Takeover Statute”). Subject to Section 6.4(c), the The Company consents to the inclusion of such recommendations approval and approvals Recommendation in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SEC, concurrently with SEC on the filing by date that Parent and Merger Sub of file the Schedule TO with respect Offer Documents pursuant to the OfferSection 1.1(b), a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that containing the Recommendation. The Company agrees to use its reasonable best efforts to mail such Schedule 14D-9 to the shareholders of the Company concurrently with the mailing of the Offer Documents. The Schedule 14D-9 will (i) comply in all material respects with the provisions of all applicable federal securities lawslaws and, (ii) reflect on the recommendations date filed with the SEC and actions of on the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opiniondate first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after Company’s shareholders and at the commencement Acceptance Time, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to information supplied by Parent or Merger Sub in writing for inclusion in the Schedule 14D-9. The Company, Parent and Merger Sub shall supplement the each agrees promptly to correct any information provided by them specifically it for use in the Schedule 14D-9 14D-9, if and to include the extent that it shall have become false or misleading in any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), material respect and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, holders of Shares as and to the extent required by applicable federal securities laws. Parent Parent, Merger Sub and its their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including each amendment or supplement thereto) before it is filed with the SEC or disseminated to and the Company Stockholdersshall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel. The In addition, the Company shall provide Parent Parent, Merger Sub and its their counsel with copies of any written comments comments, and telephone notification shall inform them of any oral comments comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written or oral responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersthereto. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors counsel shall hold in confidence, and use only in connection with the Offer be given a reasonable opportunity to review any such responses and the Merger, the information contained in Company shall give reasonable and good faith consideration to any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares comments made by Merger Sub pursuant to the Offer, and from time to time thereafterParent, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and their counsel prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actiontheir submission.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsDirectors of the Company, at a meeting duly called and held on February 11held, 2002, unanimously (i) determined that duly adopted resolutions approving this Merger Agreement, the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Company Stockholders; (ii) voted to (A) approve this Agreement and the transactions contemplated hereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment determining that the terms of the Offer and the Merger are fair to, and in the best interests of, the Company's shareholders and recommending that the Company's shareholders approve and adopt this Merger Agreement, if a vote is required by applicable law, and that the Company's shareholders accept the Merger Agreement and the Offer and tender their Shares pursuant to the holders of the Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer DocumentsOffer. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company its Board of Directors its written Fairness Opinion that, subject has received the opinion of Smit▇ ▇▇▇▇▇▇ ▇▇▇. to the various assumptions and qualifications set forth thereineffect that, as of the date of the Fairness Opinionthis Merger Agreement, the cash consideration to be received by holders of Shares (other than the Company Stockholders pursuant to this Agreement, Purchaser and its affiliates) in the Offer and the Merger is fair to such holders from a financial point of view to such holders (other than Parent and its affiliates)view. The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Concurrently with the commencement of the Offer, the Company hereby agrees to shall file with the Securities and Exchange Commission (the "SEC, concurrently with the filing by Parent ") and Merger Sub of the Schedule TO with respect mail to the Offer, holders of Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any all amendments and all amendments, supplements thereto and including the exhibits thereto, thereto (the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws), (ii) which shall reflect the recommendations and actions of described in the Company Board of Directors referred to in Section 1.2(a) and preceding paragraph (iii) include the Fairness Opinion, in each case subject to Section 6.4(ca). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company including all amendments and its counsel of any required corrections of such information and cooperate supplements thereto, shall, (i) in all material respects, comply with the Company with respect requirements of the Exchange Act and the rules and regulations thereunder and other applicable laws; (ii) include all information required by Rule 14f-1 of the Exchange Act; and (iii) not contain any untrue statement of a material fact or omit to correcting such information) and state any material fact required to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub misleading; provided, however, that the foregoing representation shall supplement not apply with respect to the accuracy of information provided furnished in writing by them the Purchaser specifically for use inclusion in the Schedule 14D-9 or taken from reports filed by the Purchaser under the Exchange Act. None of the information furnished in writing or confirmed in writing by the Company for inclusion in the Offer Documents (as defined in Section 3.4), will contain any untrue statement of a material fact or omit to include state any information that shall become material fact required to be stated therein or necessary in order to make the statements therein that are based on such provided informationtherein, in light of the circumstances under which they were made, not misleading), . The Purchaser and the Company Merger Sub and their counsel shall take all steps necessary be given an opportunity to cause review the Schedule 14D-9, as so corrected or supplemented, 14D-9 prior to be it being filed with the SEC and disseminated to shareholders. The Company agrees promptly to correct any information provided by it for use in the Company Stockholders, Offer Documents if and to the extent required by applicable federal securities laws. Parent and its counsel that it shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC have become false or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of misleading in any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staffmaterial respect.
(c) In connection with The Company will promptly furnish the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub Purchaser with mailing labels containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list holders of Shares and security position listings lists of Company Common securities positions of Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub the Purchaser with such additional information, information (including updated lists of stockholdersshareholders, mailing labels and security position listings, and such other information lists of securities positions) and assistance as Merger Sub the Purchaser or its agents may reasonably request for the purpose of communicating to communicate the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf shareholders of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Furon Co)
Company Action. (a) The Company hereby approves of and consents to the Offer Offer, and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11at which all directors of the Company were present, 2002, has duly and unanimously (i) determined that approved this Agreement, and deemed this Agreement, the Offer, the Merger and the other transactions contemplated herebyby this Agreement advisable, taken together, are at a price and on terms fair to, advisable to and in the best interests of the Company and the Company StockholdersShareholders; (ii) voted to (A) approve approved this Agreement, the Support Agreement and the transactions contemplated herebyby this Agreement and the Support Agreement, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment to the holders in all respects, and such approval constitutes approval of the Rights; Offer (and (iv) took all actions necessary the acquisition of shares of Company Common Stock pursuant thereto), the Merger, this Agreement and advisable to render inapplicable to each of the Support Agreement and the transactions contemplated by such agreements for purposes of Article 5.03 and Article 13.03 of the Transaction Documents Texas Business Corporation Act (the provisions “TBCA”); and (iii) resolved to recommend that the Company Shareholders accept the Offer, that the Company Shareholders tender their shares of any Antitakeover Company Common Stock under the Offer to Subcorp, and that the Company Shareholders approve this Agreement to the extent required by Applicable Laws. Subject to Section 6.4(c), the The Company consents to the inclusion of such recommendations approval and approvals recommendation in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offer.
(b) The Company hereby agrees to file with the SECCommission, concurrently with as soon as reasonably practicable on the filing by Parent and Merger Sub of day the Schedule TO with respect to the OfferOffer is commenced, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any and all amendments, amendments or supplements and exhibits thereto, the "“Schedule 14D-9"”) that containing the recommendation described in Section 1.2(a) and to promptly mail the Schedule 14D-9 to the Company Shareholders and use its reasonable best efforts to cause the Offer Documents to be disseminated to the Company Shareholders in accordance in all material respects with the applicable requirements of the United States federal securities laws. The Company will (i) use its reasonable best efforts to cause the Schedule 14D-9 to comply in all material respects with the provisions applicable requirements of all applicable the United States federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if information provided and to be provided by the extent that it shall become false or misleading in any material respect (and Company, Parent and Merger Sub, with respect to information supplied by them specifically Subcorp for use in the Schedule 14D-914D-9 shall not, shall promptly notify on the date filed with the Commission and on the date first published or sent or given to the Company and its counsel Shareholders, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and misleading, except that no representation is made by the Company with respect to the information supplied by Parent or Subcorp for inclusion in the Schedule 14D-9. The Company will use its reasonable best efforts to comply in all material respects with the applicable requirements of the United States federal securities laws. The Company, Parent and Merger Sub shall supplement the Subcorp each agree promptly to correct any information provided by them specifically it for use in the Schedule 14D-9 if and to include the extent that it shall have become false or misleading in any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading)material respect, and the Company shall further agrees to take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC Commission and disseminated to the Company Stockholders, Shareholders to the extent required by the applicable requirements of the United States federal securities laws. Parent and its Subcorp shall promptly furnish to the Company all information concerning Parent and Subcorp that is required or reasonably requested by the Company in connection with the obligations relating to the Schedule 14D-9 contained in this Section 1.2(b). Parent, Subcorp, and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed prior to the filing thereof with the SEC or disseminated to Commission. In addition, the Company Stockholders. The Company shall provide Parent and its counsel copies of any comments, whether written comments and telephone notification of any oral comments or oral, that the Company or its counsel may receive from time to time from the Commission or the SEC or its staff Staff with respect to the Schedule 14D-9 promptly within a reasonable time after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide consult with Parent and its counsel prior to responding to such comments and provide Parent with copies of any all written responses and telephonic notification of any verbal responses by the Company or its counsel advise Parent as to the SEC or its staffsubstance of all oral responses.
(c) In connection with the Offer, the Company shall promptly, promptly will furnish (or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub furnish) Parent and Subcorp with mailing labels labels, security position listings and any available listing or computer files containing the names and addressees addresses of all record the Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each Shareholders as of a recent date, and shall promptly furnish Merger Sub Subcorp with such additional information, information and assistance (including updated lists of stockholdersthe Company Shareholders, mailing labels and security position listings, and such other information and assistance lists of securities positions) as Merger Sub Subcorp or its agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial holders of shares of Company StockholdersCommon Stock. Subject to the requirements of applicable LawExcept as required by Applicable Laws, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate communicate the MergerOffer, Parentthe Merger or the transactions contemplated by this Agreement to the Company Shareholders, Merger Sub Parent and Subcorp (and their Affiliates, agents and advisors respective representatives) shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver files to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned extent required by the confidentiality agreement between Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, dated November 23, 2004 (ii) exercise or waive any the “Confidentiality Agreement”). Subcorp hereby agrees to be bound, mutatis mutandis, by the terms and conditions of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Confidentiality Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such actionas if Subcorp were an original party thereto.
Appears in 1 contract
Sources: Merger Agreement (Amx Corp /Tx/)
Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Company Board of DirectorsBoard, at a meeting duly called and held on February 11held, 2002, unanimously has (i) determined that this Agreement, the Offer, the Merger Stockholders' Agreement and the other transactions contemplated herebyhereby and thereby, taken togetherincluding the Offer and the Merger, are at a price and on terms fair to, advisable to and in the best interests of the Company and the Company Stockholders; its stockholders, (ii) voted to (A) approve approved, adopted and declared advisable this Agreement, the Stockholders' Agreement and the transactions contemplated herebyhereby and thereby, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, in accordance with the DGCL, including, without any payment limitation, Section 203 thereof, and (iii) resolved to the holders recommend acceptance of the Rights; Offer and (iv) took all actions necessary approval and advisable to render inapplicable to each adoption of the transactions contemplated this Agreement by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer DocumentsCompany's stockholders. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The further represents that ▇▇▇▇▇ & Company hereby represents and warrants that the Independent Advisor Incorporated ("Advisor") has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, opinion as of the date of the Fairness Opinion, hereof that the consideration to be received by the holders of shares of Company Stockholders Common Stock pursuant to this Agreement, the terms of the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates)holders. The Company has been authorized by the Independent Advisor to permit, subject hereby consents to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, Documents of the Schedule 14D-9 (as defined below) recommendation of the Company Board and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant shall not withdraw or modify such recommendation in any manner adverse to the OfferParent or Merger Sub, unless the Company Board otherwise determines (based on a majority vote of the Company Board in its good faith judgment) that such withdrawal or modification is necessary to comply with its fiduciary duties to stockholders under applicable law after receiving advice from outside counsel (who may be the Company's regularly engaged independent legal counsel).
(b) The Company hereby agrees to file with the SECSEC as soon as practicable on the day that the Offer is commenced and disseminate to holders of shares of Company Common Stock, concurrently with the filing by Parent in each case as and Merger Sub of the Schedule TO with respect to the Offerextent required by applicable federal securities laws, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, amendments or supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities lawsthat, (ii) subject to Section 8.04, shall reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a2.02(a) above. Parent and (iii) include its counsel shall be given an opportunity to review and comment on the Fairness Opinion, in each case subject Schedule 14D-9 prior to Section 6.4(c)its being filed with the SEC or disseminated to holders of shares of Company Common Stock. The Company agrees to include such provide Parent and its counsel with any comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement receipt of such comments and shall provide Parent and its counsel with an opportunity to participate in the response of the OfferCompany to such comments. The Each of the Company and Parent agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary to include in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 misleading. The Company agrees to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, to be filed with the SEC and to be, at such time as reasonably agreed by Parent and the Company, disseminated to the holders of shares of Company StockholdersCommon Stock, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the The Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement promptly furnish Merger Sub Parent with mailing labels containing the names and addressees addresses of all record holders of shares of Company Stockholders, a non-objecting beneficial owners list Common Stock and with security position listings of shares of Company Common Shares Stock held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of shares of Company Common Stock as Parent may reasonably request. The Company shall promptly furnish Merger Sub Parent with such additional information, including including, without limitation, updated lists listings and computer files of stockholders, mailing labels and security position listings, and such other information and assistance in disseminating the Offer Documents to holders of shares of Company Common Stock as Merger Sub or its agents Parent may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholdersrequest. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their Affiliates, agents and advisors Parent shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Transactions, and, if this Agreement shall be terminatedterminated in accordance with Section 10.01, will promptly shall deliver to the Company all copies of such information then in their possession.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Company Action. (a) The Company hereby approves of and consents to the Offer and represents the Merger and warrants that to the inclusion in the Offer Documents and related documents of the recommendation of the Company Board of Directors, set forth in Section 3.3(b) hereof and represents that: (i) the Company Board has (x) at a meeting duly called and held on February 11, 2002, unanimously (i) determined that this Agreement, or by way a meeting in accordance with the Offer, the Merger and the other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests Bylaws of the Company approved and the Company Stockholders; (ii) voted to (A) approve adopted this Agreement and the transactions contemplated herebyherein, including the Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Offer; (iii) took all other action necessary and advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and the Merger, without any payment (y) resolved to the holders recommend acceptance of the Rights; Offer and adoption and approval of this Agreement and the Merger by the Company's stockholders, and (ivz) took all actions necessary and advisable to render inapplicable to determined that each of the transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger are fair to and in the best interests of the stockholders of the Company; and (ii) First Union Securities, Inc., acting under the tradename Wachovia Securities (the "Independent Advisor") has delivered to the Company Board a written opinion that the consideration to be received by the Company's unaffiliated stockholders pursuant to the Offer and the Merger is fair to such stockholders from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they intend to tender all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Offerview.
(b) The As soon as practicable on the day that the Offer is commenced, the Company hereby agrees to shall file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits amendments thereto, the "Schedule 14D-9") that will (iwhich shall reflect the recommendation of the Company Board set forth in Section 3.3(b) hereof. The Schedule 14D-9 shall comply in all material respects with the provisions requirements of all the applicable United States federal securities lawslaws and the rules and regulations promulgated thereunder, (ii) reflect the recommendations and actions shall contain an opinion of the Company Board of Directors referred to Independent Advisor as discussed in Section 1.2(a) 3.3(c), and (iii) include on the Fairness Opiniondate filed with the SEC and on the date first published, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub sent or given to the Company Stockholders promptly after the commencement Company's stockholders, shall not contain any untrue statement of the Offer. The Company agrees promptly a material fact or omit to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in state any material respect (and Parent and Merger Sub, with respect fact required to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (misleading, except that no representation or warranty is made by the Company with respect to information supplied by Parent or Purchaser for inclusion in the Schedule 14D-9. Each party shall promptly supplement, update and Parent and Merger Sub shall supplement the correct any information provided by them specifically it for use in the Schedule 14D-9 if and to include the extent that it is or shall have become incomplete, false or misleading. In any information that shall become necessary in order to make the statements therein that are based on such provided informationevent, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, 14D-9 as so corrected or supplemented, updated or corrected to be filed with the SEC and to be disseminated to the Company Stockholdersstockholders of the Company, in each case, as and to the extent required by applicable United States federal securities laws. Parent Parent, Purchaser and its their counsel shall be given a reasonable an opportunity to review and comment on the Schedule 14D-9 before it is and each supplement, amendment or response to comments with respect thereto prior to its being filed with or delivered to the SEC or disseminated to the stockholders of the Company, and the Company Stockholdersshall consider such comments in good faith. The Company shall agrees to provide Parent Parent, Purchaser and its their counsel copies a copy of any written comments and telephone notification of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff.
(c) In connection with the Offer, the Company shall promptly, (or shall cause its transfer agent to) promptly furnish to promptlyPurchaser mailing labels, following execution of this Agreement furnish Merger Sub with mailing labels security position listings and any available listing or computer files containing the names and addressees addresses of all the record Company Stockholders, a non-objecting beneficial owners list and security position listings holders of Company Common Shares held in stock depositories, each as of a recent date, date and shall promptly furnish Merger Sub Purchaser with such additional informationinformation and assistance (including, including without limitation, updated lists of stockholders, mailing labels and security position listings, and such other information and assistance lists of securities positions) as Merger Sub Purchaser or its agents may reasonably request for the purpose of in communicating the Offer to the record and beneficial Company Stockholdersholders of Shares. Subject to the requirements of applicable Lawlaw, and except for such steps as are appropriate necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub Purchaser and their Affiliatesrespective affiliates, associates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, confidence the information contained in any such labels, listings and filesfiles and will use such information only in connection with the Offer and the Merger and any proceedings related thereto and the consummation thereof, and, if this Agreement shall be terminatedterminated will, will promptly upon written request, deliver to the Company all copies of such information and any extracts or summaries from such information then in their possessionpossession and control.
(d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) take any action taken by the Company in connection with the transactions contemplated by this Agreement, and such affirmative majority vote shall be sufficient to take any such action.
Appears in 1 contract
Sources: Merger Agreement (Kellwood Co)