Common use of EGM Clause in Contracts

EGM. At any time following the execution of this Agreement, but in any event prior to the Initial Expiration Time, the Company shall hold an extraordinary meeting of shareholders (the “EGM”) to (a) provide information regarding the Offer and approve this Agreement, (b) accept the resignation from the Board of the existing members thereof and appoint the new members of the Board in accordance with the designation of Buyer set out below; (c) approve the sale by the Company effective as of the Closing, pursuant to a sale and purchase agreement (an “Asset Sale Agreement”), of all or substantially all of the assets of the Company (including the Company’s Subsidiaries) to Buyer or one or more of its designees for aggregate consideration of (i) a note payable (the “Note Payable”) from Buyer or one or more of its designees in an aggregate principal amount equal to the Per Share Amount multiplied by the total number of outstanding Company Shares as of the Closing (which Note Payable shall be prepayable without penalty or premium but shall require the Buyer to repay to the Company, on or prior to the completion of the Subsequent Offering Period, an amount of the Note Payable equal to the Per Share Amount multiplied by the number of Shares not tendered in the Tender Offer or the Subsequent Offering Period), and (ii) the assumption by Buyer or its designees of all liabilities and obligations of the Company, whether actual, contingent or otherwise, including the express assumption of all contractual obligations (and also including the related obligation of Buyer or its designees to fully indemnify and hold harmless the Company with respect to all such assumed liabilities and obligations) (the transaction described in this clause (c), the “Asset Sale”); and (d) resolve upon the liquidation and dissolution of the Company following such Asset Sale and completion of the Subsequent Offering Period with the aim that the proceeds of such sale will be paid by means of a liquidation distribution to the shareholders of the Company such that (i) each holder of Company Shares that were not tendered in the Offer or during the Subsequent Offering Period shall receive cash in an amount equal to the Per Share Amount multiplied by the number of Company Shares then held by such holder, less any applicable withholding taxes and (ii) Buyer shall receive (in kind) the Note Payable. In connection with the Asset Sale, the Buyer shall provide a guarantee to the liquidator as to any deficit in the estate of the Company, so as to enable the liquidator to pay the Per Share Amount per Company Share (less withholding taxes, if any) by means of an advance liquidation distribution to holders of Company Shares that were not tendered in the Offer or during the Subsequent Offering Period. The resignations and appointments and the approval of the sale of the Company’s assets, the liquidation and dissolution of the Company and the distribution of the liquidation proceeds referred to in the preceding sentence (the “Stockholder Approvals”) will be effective as of, and conditional upon the occurrence of, the Closing. As soon as practicable after the date of execution of this Agreement and no later than 20 calendar days prior to the date of the EGM, Buyer shall designate in writing to the Company the new members for the Board and furnish the Company with all information with respect to those new members that is required to be disclosed to the Company shareholders under the Laws of The Netherlands. At the EGM, the Company shall use its reasonable best efforts to secure the Stockholder Approvals, such Stockholder Approvals to be effective as of, and conditional upon, the occurrence of the Closing, as aforesaid. Buyer and the Company shall consummate the Asset Sale simultaneously with the Closing.