Proxy Statement; Registration Statement. (a) As soon as reasonably practicable following the date of this Agreement, Parent and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (ii) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation of the Registration Statement. (b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent without the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. (c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act. (d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
Appears in 4 contracts
Sources: Merger Agreement (Progressive Care Inc.), Merger Agreement (NextPlat Corp), Merger Agreement (Progressive Care Inc.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement, Parent (i) BCAC (with the assistance and cooperation of the Company as reasonably requested by BCAC, including delivery of the financial statements of the Company for the twelve (12) month period ended December 31, 2021 in accordance with Section 7.14) shall prepare and file with the SEC a joint information statement/proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of BCAC and from which the Company may derive an information statement that it can send to the stockholders of the Company relating to (A) with respect to the Company’s stockholders, the action to be taken by certain stockholders of the Company pursuant to the Written Consent and (B) with respect to BCAC’s stockholders, the meeting of BCAC’s stockholders (the “BCAC Stockholders’ Meeting”) to be held to consider approval and adoption of (1) this Agreement and the Company Merger, (2) the issuance of BCAC Common Stock as contemplated by this Agreement, (3) the second amended and restated BCAC Certificate of Incorporation as set forth on Exhibit C, (4) the Equity Plan, (5) the ESPP, (6) the classes of the members of the BCAC Board as of immediately following the Effective Time, (7) the election of the Initial Post-Closing BCAC Directors to serve as the members of the BCAC Board as of immediately following the Effective Time and until their respective successors are duly elected or appointed and qualified and (8) any other proposals the parties mutually deem necessary to effectuate the Merger (collectively, the “BCAC Proposals”), and (ii) BCAC shall use commercially reasonable efforts to jointly prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent BCAC Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”A) to be sent issued to the stockholders of Parent and the Company pursuant to this Agreement (other than any signatories to the Stockholder Support Agreement that are not executive officers, directors, affiliates, founders or their family members or holders of 5% or more of the voting equity securities of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Resale Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval held by the stockholders of other proposals BCAC immediately prior to the Effective Time. The Company shall furnish all information concerning the Company and Parent shall hereafter mutually determine to be necessary or appropriate as BCAC may reasonably request in order to effect the Merger connection with such actions and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting preparation of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption Proxy Statement and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyRegistration Statement. Parent BCAC and the Company each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements Laws applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable practicable, and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, BCAC shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of BCAC Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after finalization of the Registration Statement becomes effectiveProxy Statement, (i) Parent each of the Company and BCAC shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law . Each of BCAC and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent BCAC or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . BCAC and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent BCAC Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent BCAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably conditioned, withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure BCAC represents that the information supplied by Parent BCAC for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and BCAC, (iii) the time of each of the Parent Stockholders’ Meeting and the Company BCAC Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to BCAC or Merger Sub, or their respective officers or directors, should be discovered by BCAC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, BCAC shall promptly inform the Company. All documents that BCAC is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and BCAC, (iii) the time of the Parent Stockholders’ Meeting and the Company BCAC Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsBCAC. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(e) Following the Effective Time (and in any event no later than 45 days after the Effective Time), BCAC shall file a registration statement on Form S-3 (or, if Form S-3 is not available to BCAC at such time, on Form S-1 or another appropriate form) (the “Resale Registration Statement”) with the SEC with respect to the shares of BCAC Common Stock to be issued to the Resale Stockholders, and BCAC shall use commercially reasonable efforts to cause such registration statement to be declared effective; provided, however, that BCAC’s obligation to include the securities held by a Resale Stockholder in the Resale Registration Statement shall be subject to the rights and restrictions on BCAC and such Resale Stockholder set forth in the Registration Rights and Lock-Up Agreement, contingent upon such Resale Stockholder furnishing to BCAC such information regarding such Resale Stockholder, the securities held by such Resale Stockholder and the intended method of disposition of the securities held by such Resale Stockholder as may be reasonably requested by BCAC to effect the registration of such Resale Stockholder’s securities, and the Resale Stockholder may be required by BCAC to execute such documents in connection with such registration as BCAC may reasonably request that are customary of a selling stockholder in similar situations.
Appears in 4 contracts
Sources: Business Combination Agreement (Apexigen, Inc.), Business Combination Agreement (Apexigen, Inc.), Business Combination Agreement (Brookline Capital Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon Clearwire will, as reasonably promptly as practicable following the date of this AgreementExecution Date, Parent prepare and file, the Company shall use commercially reasonable efforts to jointly prepare Proxy Statement and a registration statement on Form S-4 S-4, or other appropriate form, registering the Class A Common Stock (together with all amendments thereto, the “Registration Statement”) to be filed by Parent with the SEC, pursuant SEC and will use Reasonable Best Efforts to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent respond to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations comments of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (ii) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute the Proxy Statement to its stockholdersbe mailed to Clearwire’s stockholders at the earliest practicable time, andprovided, pursuant theretohowever, shall call the Parent Stockholders’ Meeting that Clearwire will not be in accordance with Nevada breach of this Section 10.8 if Sprint or any Investor fails to provide any information required by Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and for the preparation of the Registration Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement Statement. Sprint and each Investor will be made by Parent without use Reasonable Best Efforts to provide as soon as reasonably practicable the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws Law to be included thereinin the Proxy Statement or the Registration Statement. Parent Each Party to this Agreement will advise notify the Company, other Parties promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, receipt of the issuance of any stop order, comments of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdictionSEC, or if any, and of any request by the SEC for amendment of amendments or supplements to the Proxy Statement or the Registration Statement or comments thereon for additional information with respect thereto, and responses thereto will supply the other Parties with copies of all correspondence between that party or requests by its Representatives, on the one hand, and the SEC for additional information. Each or members of Parent and its staff, on the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed)other hand, any response to comments of the SEC with respect to the Proxy Statement, the Registration Statement or the Registration Statement and Merger. If, at any time before the Stockholders’ Meeting, any event should occur relating to:
(i) Clearwire or any of its Affiliates, or relating to the plans of those Persons for NewCo after the Effective Time that should be set forth in an amendment to of, or a supplement to, the Proxy Statement or Registration Statement, or
(ii) Sprint or any of its Affiliates, or relating to the plans of those Persons for NewCo after the Effective Time that should be set forth in an amendment of, or a supplement to, the Proxy Statement or Registration Statement, or
(iii) any Investor or any of its Affiliates, or relating to the plans of those Persons for NewCo after the Effective Time that should be set forth in an amendment of, or a supplement to, the Proxy Statement or Registration Statement, in each case, so that the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the and/or Proxy Statement shall would not contain include any untrue statement misstatement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at then Clearwire, Sprint or that Investor, as the case may be, will promptly inform the other Parties, and Clearwire will, on learning of that event, promptly prepare, and Clearwire will file and, if required, mail that amendment or supplement to Clearwire’s stockholders, except that, before that filing or mailing, Clearwire will consult with the other Parties with respect to that amendment or supplement and will use its Reasonable Best Efforts to accommodate the other Parties’ comments thereon.
(ib) Notwithstanding the time foregoing, prior to filing the Registration Statement is declared effective, (iior any amendment or supplement thereto) the time or filing the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or responding to any comments of the SEC with respect thereto, Clearwire shall provide Sprint and each Investor and its respective counsel with a reasonable opportunity to review and comment on such document or response and include in the Proxy Statement any language reasonably proposed by Sprint.
(c) Clearwire will include in the Proxy Statement the recommendation of Clearwire’s board of directors described in Section 6.1(b), subject to any modification, amendment or withdrawal thereof, to the extent permitted by Section 10.4, and represents that the Independent Advisor has, subject to the terms of its engagement letter with Clearwire and Clearwire’s board of directors, consented to the inclusion of references to its opinion in the Proxy Statement. In addition, Clearwire will include in the Proxy Statement a reasonably detailed description of the provisions of NewCo’s certificate of incorporation relating to limitations on fiduciary duties and a description of the material risks posed to NewCo’s stockholders relating to such limitation of Parent fiduciary duties. Clearwire and its counsel will permit Sprint and its counsel and the stockholders of Investors and their respective counsel to participate in all communications with the Company SEC and (iii) the time of the Parent Stockholders’ Meeting its staff, including any meetings and the Company Stockholders’ Meeting. Iftelephone conferences, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company Merger or this Agreement.
(d) Sprint shall, and shall promptly inform Parent. The Company cause its Subsidiaries to, and shall promptly correct any information provided use its Reasonable Best Efforts to cause its and their respective Representatives to, provide to Clearwire and NewCo all cooperation reasonably requested by it for use in the Registration Statement (and other related materials) if and to the extent Clearwire or NewCo that such information is determined to have become false necessary, proper or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC advisable in connection with the Merger or preparation of the Proxy Statement and Registration Statement, including (i) using Reasonable Best Efforts to participate in a reasonable number of meetings, presentations, and sessions with rating agencies, (ii) to the extent reasonably requested by Clearwire, using Reasonable Best Efforts to, as promptly as practical, furnish Clearwire and NewCo with all financial statements, pro forma financial information, financial data, audit reports and other transactions contemplated information with respect to Sprint Sub LLC and the Transfer Entities of the type required by this Agreement shall comply as to form Regulation S-X and substance in all material respects with the applicable requirements of Regulation S-K under the Securities Act and of type and form required in a registration statement on Form S-4 (or any applicable successor form) under the Exchange ActSecurities Act (all such information, the “Required Information”), or as otherwise reasonably required in connection with the Proxy Statement and Registration Statement or in connection with any debt financing (a “Debt Financing”), (iii) using Reasonable Best Efforts to obtain accountants’ comfort letters, legal opinions, appraisals, surveys, engineering reports, title insurance and other documentation and items relating to a Debt Financing as reasonably requested by Clearwire and, if requested by Clearwire or NewCo, to reasonably cooperate with and assist Clearwire or NewCo in obtaining such documentation and items; (iv) to the extent required by applicable Law, using its Reasonable Best Efforts to provide financial statements (excluding footnotes) for Sprint Sub LLC and the Transfer Entities to the extent prepared on a monthly basis in the ordinary course by Sprint or any of its Subsidiaries, within 30 days of the end of each month prior to the Closing Date, and (v) using Reasonable Best Efforts to execute and deliver any pledge and security documents, other definitive financing documents, or other certificates, or documents as may be reasonably requested by Clearwire (including a certificate of the Chief Financial Officer of Sprint or any of its Subsidiaries with respect to solvency matters) and otherwise reasonably facilitating the pledging of collateral (including cooperation in connection with the pay off of existing indebtedness and the release of related Encumbrances, if any); provided that Sprint will only be required to deliver certificates and other documentation, with respect to each of the foregoing clauses, to the extent relating to Sprint Sub LLC and the Transfer Entities; provided, further, that no obligation of Sprint or any of its Subsidiaries under such executed documents will be effective until the Effective Time and will terminate and be of no effect if this Agreement is terminated. With respect to clause (v), Sprint will have the opportunity to review and comment on any of these documents or certificates, each of which will be subject to the approval of Sprint, which approval shall not be unreasonably withheld, conditioned or delayed. It is understood and agreed that Sprint will prepare a letter to the SEC requesting that the SEC provide written concurrence that the information in clause (ii) above may be limited to “carve-out” financial statements as set forth more fully in such letter. Sprint will provide Clearwire the opportunity to review such letter prior to its submission to the SEC. Sprint will submit such letter to the SEC no later than 15 days after the Execution Date. In addition to the obligations set forth above, (1) if the SEC grants such written concurrence then Sprint shall, and shall cause its Subsidiaries to, and shall use its Reasonable Best Efforts to cause its and their respective Representatives to, deliver the financial statements and reports described in clause (ii) above no later than 90 days after the Execution Date and (2) if the SEC requires different or additional financial statements or has not responded to Sprint’s request, Sprint shall, and shall cause its Subsidiaries to, and shall use its Reasonable Best Efforts to cause its and their respective Representatives to, deliver the financial statements and reports described in clause (ii) above, as modified by any written SEC response, no later than 120 days after the Execution Date.
Appears in 4 contracts
Sources: Transaction Agreement and Plan of Merger, Transaction Agreement and Plan of Merger (Sprint Nextel Corp), Transaction Agreement and Plan of Merger (Clearwire Corp)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date of this Agreement, Parent Tuatara and the Company shall prepare, and Tuatara shall file with the SEC, (i) a preliminary proxy statement in connection with the Merger to be filed as part of the Registration Statement and sent to the Pre-Closing Tuatara Holders relating to the Tuatara Extraordinary General Meeting (such proxy statement, together with any amendments or supplements thereto, the “Proxy Statement”) for the purposes of the approval of the Transaction Proposals and (ii) the Registration Statement, in which the Proxy Statement will be included as a prospectus. Tuatara and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together cooperate, and cause their respective Subsidiaries, as applicable, to reasonably cooperate, with all amendments thereto, each other and their respective representatives in the “preparation of the Proxy Statement and the Registration Statement”) . Tuatara shall use its commercially reasonable efforts to be filed by Parent with cause the SEC, pursuant to which Proxy Statement and the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance comply with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of promulgated by the SEC and NasdaqSEC, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause have the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof and (ii) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As Merger.
(b) Tuatara shall as promptly as practicable after notify the Registration Statement becomes effectiveCompany of any correspondence with the SEC relating to the Proxy Statement, (i) Parent shall distribute the receipt of any oral or written comments from the SEC relating to the Proxy Statement, and any request by the SEC for any amendment to the Proxy Statement or for additional information. Tuatara shall cooperate and provide the Company with a reasonable opportunity to its stockholdersreview and comment on the Proxy Statement (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the SEC and give due consideration to all comments reasonably proposed by the Company in respect of such documents and responses prior to filing such with or sending such to the SEC, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholdersextent practicable, andthe Parties will provide each other with copies of all such filings made and correspondence with the SEC. Tuatara shall use commercially reasonable efforts to obtain all necessary state securities Law or “blue sky” permits and approvals required to carry out the Merger, pursuant thereto, shall call and the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it the Company as may be reasonably be requested by Parent in connection with any such actions action. Each of Tuatara and the preparation of Company shall use reasonable best efforts to promptly furnish to each other party all information concerning itself, its Subsidiaries, officers, directors, managers, members and stockholders, as applicable, and such other matters, in each case, as may be reasonably necessary in connection with and for inclusion in the Proxy Statement, the Registration Statement.
Statement or any other statement, filing, notice or application made by or on behalf of Tuatara and the Company or their respective Subsidiaries, as applicable, to the SEC or Nasdaq in connection with the Merger (b) No filing of, or including any amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent without Statement) (collectively, the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed“Offer Documents”); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Tuatara will advise the Company, promptly after it Tuatara receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of order or the suspension of the qualification of the Parent Tuatara Ordinary Shares or the Surviving Pubco Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, of the initiation or written threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Proxy Statement or Statement, the Registration Statement or comments thereon and responses thereto the other Offer Documents or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent Without limiting the generality of Section 9.04(b), the Company shall promptly furnish to Tuatara for inclusion in the Proxy Statement and the Registration Statement, (i) with respect to the Audited Financial Statements, auditor’s reports and consents to use such financial statements and reports and (ii) unaudited financial statements of the Company and its Subsidiaries as of and for the nine months ended September 30, 2021 and September 30, 2020 prepared in accordance with GAAP and Regulation S-X and reviewed by the Company’s independent auditor in accordance with PCAOB Auditing Standard 4105; provided that, if the Registration Statement has not become effective under the Securities Act by February 14, 2022, in addition to the Audited Financial Statements, the Company shall also promptly furnish to Tuatara for inclusion in the Proxy Statement and the Registration Statement the audited consolidated balance sheets and statements of operations, stockholders’ equity and cash flows of the Company and its Subsidiaries as of and for the year ended December 31, 2021, together with the auditor’s report for such financial statements.
(d) Each of Tuatara and the Company shall use its commercially reasonable best efforts to ensure that none of the information related to it or any of its Affiliates, supplied by Parent or on its behalf for inclusion or incorporation by reference in (i) either Proxy Statement will, as of the date it is first mailed to the Pre-Closing Tuatara Holders, or at the time of the Tuatara Extraordinary General Meeting, or (ii) the Registration Statement will, at the time the Registration Statement is filed with the SEC, at each time at which it is amended, at the time it becomes effective under the Securities Act and at the Proxy Statement shall not Effective Time, in either case, contain any untrue statement of a material fact or fail 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 are made, not misleading at misleading.
(ie) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance information relating to Parent or Merger SubTuatara, the Company, or any of their respective officers Subsidiaries, Affiliates, directors or directorsofficers, should be as applicable, or the Holders is discovered by Parent which should either Tuatara or the Company and is required to be set forth in an amendment or a supplement to either Proxy Statement or the Registration Statement, so that such Proxy Statement or the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct would not include any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement misstatement of a material fact or fail 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, at (i) the time party that discovers such information shall promptly notify the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any other party and an appropriate amendment thereof or supplement thereto) is first mailed describing such information shall, subject to the stockholders other provisions of Parent and this Section 9.04, be promptly filed by Tuatara with the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. IfSEC and, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that Law, disseminated to the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange ActPre-Closing Tuatara Holders.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Tuatara Capital Acquisition Corp), Agreement and Plan of Merger (Tuatara Capital Acquisition Corp), Merger Agreement (Tuatara Capital Acquisition Corp)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement, the Parent and the Company shall use commercially reasonable efforts to jointly prepare and file with the SEC a single document that will constitute (i) the proxy statement of the Company relating to the special meeting of the Company's stockholders (the "COMPANY STOCKHOLDERS MEETING") to be held to consider approval and adoption of this Agreement and the Merger and the special meeting of the Parent's stockholders (the "PARENT STOCKHOLDERS MEETING") to be held to consider approval of the issuance of the shares of Parent Common Stock in the Merger and (ii) the registration statement on Form S-4 S- 4 of the Parent (together with all amendments thereto, the “Registration Statement”) to be filed by Parent "REGISTRATION STATEMENT"), in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent issued to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect connection with the Merger and the other transactions contemplated by this Agreement prospectus included in the Registration Statement (collectivelysuch single document, together with any amendments thereof or supplements thereto, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B"PROXY STATEMENT"), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. The Parent and the Company each shall use commercially its reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared become effective under the Securities Act as promptly as practicable and (ii) keep practicable, and, prior to the effective date of the Registration Statement effective as long as is necessary to consummate (the Transactions. As promptly as practicable after "REGISTRATION STATEMENT EFFECTIVE DATE"), the Registration Statement becomes effective, (i) Parent shall distribute take all or any action required under any applicable Law in connection with the Proxy Statement issuance of Parent Common Stock pursuant to its stockholdersthe Merger. The Parent or the Company, and, pursuant theretoas the case may be, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it the Parent or the Company as the other party may reasonably be requested by Parent request in connection with such actions and the preparation of the Proxy Statement and the Registration Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or . As promptly as practicable after the Registration Statement will be made by Parent without Effective Date, the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response proxy statements and prospectus included in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement theretocollectively, the "PROXY MATERIALS") is first will be mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent. The Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or shall cause the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and (i) the Exchange Act, including Sections 14(a) and 14(d) thereof and the respective regulations promulgated thereunder, (ii) the Securities Act, (iii) the rules and regulations of the NASDAQ/NMS and (iv) the GCL.
(b) Subject to Section 5.8 with respect to the Company's Board of Directors, the Proxy Statement shall include the unanimous and unconditional recommendation of the Board of Directors of the Company to the stockholders of the Company that they vote in favor of the adoption of this Agreement and the Merger and the unanimous and unconditional recommendation of the Board of Directors of the Parent to the stockholders of the Parent that they vote, as required by NASDAQ/NMS, in favor of the issuance of the shares of Parent Common Stock in the Merger. In addition, the Proxy Statement and the Proxy Materials will include a copy of the written opinions of the Company Financial Advisor referred to in Section 3.22 and the Parent Financial Advisor referred to in Section 4.20.
(c) No amendment or supplement to the Proxy Statement will be made without the approval of each of the Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, If at any time prior to the Effective Time, Time any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Proxy Statement or the Proxy StatementRegistration Statement so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein in light of the circumstances under which they were made, not misleading, the Company shall promptly inform the Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall hereby will comply as to form and substance in all material respects with the applicable requirements of the GCL, the Securities Act and the Exchange Act.
(e) If, at any time prior to the Effective Time, any event or circumstance relating to the Parent or any Parent Subsidiary, or their respective officers or directors, should be discovered by the Parent that should be set forth in an amendment or a supplement to the Proxy Statement or the Registration Statement so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein in light of the circumstances under which they were made, not misleading, the Parent shall promptly inform the Company. All documents that the Parent is responsible for filing in connection with the transactions contemplated by this Agreement will comply as to form and substance in all material aspects with the applicable requirements of the GCL, the Securities Act and the Exchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Metromedia Fiber Network Inc), Merger Agreement (Metromedia Fiber Network Inc)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement, Parent (a) the Company and the Company Parent shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent and file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered SEC (with appropriate requests for confidential treatment) under the Securities Act, which Registration Statement shall include Exchange Act a joint proxy statement/prospectus and a form of a proxy (such proxy statement/prospectus or joint proxy statement/prospectus, as amended the case may be, together with any amendments thereof or supplementedsupplements thereto, in each case in the form or forms delivered to the Unitholders of the Company and the shareholders of the Parent, the “Proxy Statement”"PROXY STATEMENT") to be sent relating to the stockholders solicitation of Parent approval from the Unitholders and the shareholders of the Company. Pursuant Parent with respect to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements Transaction Documents and the transactions contemplated hereby or therebyand thereby and (b) the Parent shall file with the SEC under the Securities Act the Registration Statement, including in which the Proxy Statement will be included as a prospectus, in connection with the registration under the Securities Act of the Parent Shares to be issued and distributed to the Unitholders and the General Partner pursuant to the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. The Parent and the Company shall use commercially reasonable efforts to (i) will cause the Registration Statement when filed with and the SEC Proxy Statement to comply in all material respects with all legal requirements applicable theretothe Securities Act, the Exchange Act and (ii) respond as promptly as reasonably practicable to the rules and resolve all comments received from regulations thereunder. Each of the SEC concerning Parent and the Registration Statement. Parent Company shall use all commercially reasonable efforts to (i) have or cause the Registration Statement to be declared become effective under (including clearing the Securities Act Proxy Statement with the SEC) as promptly as practicable thereafter, and shall take any and all actions required under any applicable federal or 65 56 state securities or "blue sky" laws in connection with the issuance of shares of Parent Shares pursuant to the Merger. Without limiting the generality of the foregoing, each of the Parent and the Company agrees to use all commercially reasonable efforts, after consultation with the other such party, to respond as promptly as possible to any comments made by the SEC with respect to the Proxy Statement (iiincluding each preliminary version thereof) keep and the Registration Statement effective (including each amendment thereof and supplement thereto). Each of the Parent and the Company shall, and shall cause its respective representatives to, cooperate fully with the other such party with all information concerning it and its affiliates, directors, officers and stockholders as long the other may reasonably request in connection with the preparation of the Proxy Statement and the Registration Statement. The Proxy Statement shall include the determination and recommendation of the (a) Board of Directors of the General Partner and the Special Committee and (b) the Board of Directors of the Parent, that the Unitholders and the shareholders of the Parent, respectively, vote in favor of the approval and adoption of the Merger, this Agreement, the other Transaction Documents, the transactions contemplated hereby and thereby and the issuance of the Parent Shares in connection with the Merger, as is necessary the case may be; provided, however, that the Board of Directors of the General Partner and the Special Committee may withdraw, modify or change such respective recommendation if any of them determines in good faith, based upon the advice of outside counsel, that making such recommendation, or the failure to consummate so withdraw, modify or change its recommendation, or the Transactionsfailure to recommend any other offer or proposal, could reasonably be deemed to cause them to breach their 66 57 fiduciary duties under applicable law. As promptly as practicable after the Registration Statement becomes shall have become effective, (i) the Company and the Parent shall distribute cause the Proxy Statement to its stockholdersbe mailed to the Unitholders and the shareholders of the Parent, andrespectively.
5.3.1 Without limiting the generality of the foregoing, pursuant thereto(a) the General Partner, the Company and the Subsidiary Partnership, on the one hand, and the Parent, the Operating Partnership, Newco I, Newco II and Merger Sub, on the other hand, shall call each notify the Parent Stockholders’ Meeting other as promptly as practicable upon becoming aware of any event or circumstance which should be described in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation of the Registration Statement.
(b) No filing an amendment of, or amendment or a supplement to to, the Proxy Statement or the Registration Statement will be made Statement, and (b) the Company and the Parent shall each notify the other as promptly as practicable after the receipt by Parent without the approval it of any written or oral comments of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdictionon, or of any written or oral request by the SEC for amendment of amendments or supplements to, the Proxy Statement or the Registration Statement Statement, and shall promptly supply the other with copies of all correspondence between it or comments thereon any of its representatives and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to any of the foregoing filings.
5.3.2 The information supplied by the General Partner, Company and the Subsidiary Partnership for inclusion or incorporation by reference in the Proxy Statement or and the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 (a) at (i) the time the Registration Statement is declared effective, (iib) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent Unitholders and the stockholders shareholders of the Company and Parent, (iiic) at the time of the Parent Stockholders’ (i) Company Unitholders' Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.67 58
Appears in 2 contracts
Sources: Merger Agreement (Boykin Lodging Co), Merger Agreement (Red Lion Inns Limited Partnership)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement, Parent (i) SPAC and the Company shall use commercially reasonable efforts prepare, and Holdco shall file, with the SEC a joint proxy statement/information statement (as amended or supplemented, the “Proxy Statement”) to jointly be sent to the SPAC Stockholders and to the Company Stockholders relating to (A) with respect to the Company Stockholders, the action taken by certain Company Stockholders pursuant to the Written Consent and (B) with respect to SPAC’s stockholders, the special meeting of SPAC’s stockholders (the “SPAC Stockholders’ Meeting”) to be held to consider approval and adoption of (1) this Agreement and the SPAC Merger and (2) any other proposals the Parties deem necessary to effectuate the Transactions (collectively, the “SPAC Proposals”) and (ii) SPAC and the Company shall prepare and Holdco shall file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered registration under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor Act of (A) the approval and adoption shares of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals Holdco Common Stock to be issued to the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect Stockholders that did not execute the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and NasdaqWritten Consent, (B) such other matters as the Company and Parent shall hereafter mutually determine shares of Holdco Common Stock to be necessary or appropriate in order issued to effect the Merger SPAC Stockholders and issuable upon exercise of the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), Holdco Warrants and (C) the adjournment of Holdco Warrants to be issued to the SPAC Stockholders pursuant to this Agreement. SPAC, the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company Holdco each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, Holdco, the Company and the SPAC as and if applicable shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of Holdco Common Stock and Holdco Warrants, in each case to be issued or issuable to the Company Stockholders and the SPAC Stockholders pursuant to this Agreement. As promptly as practicable after finalization of the Registration Statement becomes effectiveProxy Statement, (i) Parent each of the Company and SPAC shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law . Each of SPAC and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other Party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent SPAC, the Company or Holdco without the approval of the Company other Parties (such approval not to be unreasonably withheld, conditioned or delayed); provided. For the avoidance of doubt, howeverprior to filing with the SEC, that subject Holdco and the Company will make available to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis SPAC drafts of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information thatRegistration Statements, based on the advice of outside counsel to Parent, is required by the SEC Proxy Statement and United States securities Laws any other documents to be included thereinfiled with the SEC, both preliminary and final, and drafts of any amendment or supplement to the Registration Statement, Proxy Statement or such other document and will provide SPAC with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. Parent SPAC, the Company and Holdco each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Holdco Common Stock to be issued or issuable to the holders of Company Securities Stockholders and the SPAC Stockholders in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and SPAC, the Company and Holdco shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure SPAC represents that the information supplied by Parent SPAC for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent the SPAC Stockholders and the stockholders of the Company and Stockholders, (iii) the time of each of the Parent Stockholders’ Meeting and the Company SPAC Stockholders’ Meeting. If, at any time prior to and (iv) the SPAC Merger Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the SPAC Merger Effective Time, any event or circumstance relating to SPAC, or its respective officers or directors, should be discovered by SPAC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, SPAC shall promptly inform the Company. All documents that SPAC is responsible for filing with the SEC in connection with the SPAC Merger or the other Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent SPAC Stockholders and the stockholders of the Company and Stockholders, (iii) the time of the Parent Stockholders’ Meeting and the Company SPAC Stockholders’ Meeting, and (iv) the Company Merger Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Company Merger Effective Time, any event or circumstance relating to the Company, Holdco or the Merger Subs, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsSPAC. All documents that each of the Company and Holdco is responsible for filing with the SEC in connection with the Company Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(e) At least five (5) days prior to Closing, the Parties shall mutually begin preparing a draft Current Report on Form 8-K in connection with and announcing the Closing, together with, or incorporating by reference, such information that is or may be required to be disclosed with respect to the transactions contemplated hereby pursuant to Form 8-K (the “Closing Form 8-K”). Prior to the Closing, the Parties shall prepare a mutually agreeable press release announcing the consummation of the transactions contemplated hereby (“Closing Press Release”). Concurrently with the Closing, Holdco shall distribute the Closing Press Release, and within four (4) Business Days after the Closing, Holdco shall file the Closing Form 8-K with the SEC.
Appears in 2 contracts
Sources: Business Combination Agreement (OTR Acquisition Corp.), Business Combination Agreement (OTR Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon Parent and the Company shall, as promptly as reasonably practicable following the date of this Agreement, Parent prepare and file with the SEC a proxy statement relating to the meetings of the Company’s stockholders and Parent’s stockholders to be held in connection with this Agreement and the Company shall use commercially reasonable efforts to jointly prepare transactions contemplated by this Agreement (together with any amendments or supplements thereto, the “Joint Proxy Statement”) and a registration statement on Form S-4 (together with all any amendments or supplements thereto, the “Registration StatementForm S-4”) to be filed by Parent with the SEC), pursuant to in which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall Joint Proxy Statement will be registered under the Securities Act, which Registration Statement shall include included as a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders prospectus. Each of Parent and of the Company. Pursuant Company shall, upon the reasonable request by the Other Party, furnish to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to Other Party all information as may be reasonably necessary or appropriate advisable in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance connection with the Company Organizational Documents, Joint Proxy Statement or the Laws Form S-4. Each of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially its reasonable best efforts to (i) cause have the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing and (ii) to keep the Registration Statement Form S-4 effective as long as is necessary to consummate the Transactionstransactions contemplated by this Agreement. As promptly as practicable after Each of the Registration Statement becomes effective, (i) Parent Parties shall distribute mail or deliver the Joint Proxy Statement to its stockholdersrespective stockholders as promptly as reasonably practicable after the Form S-4 has been declared effective under the Securities Act. Parent shall also use its reasonable best efforts to obtain all necessary state securities Law or “blue sky” permits and approvals required to carry out the transactions contemplated by this Agreement, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it and the holders of Company Common Stock as may be reasonably be requested by Parent in connection with any such actions action. Each of Parent and the preparation Company shall, as promptly as reasonably practicable after receipt thereof, provide the Other Party copies of any written comments and advise the Registration Statement.
(b) No filing ofOther Party of any oral comments, or amendment or supplement with respect to the Joint Proxy Statement or and/or the Registration Statement will be made by Parent without Form S-4 received from the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included thereinSEC. Parent will Each Party shall also advise the CompanyOther Party, as promptly as reasonably practicable after it receives receipt of notice thereof, of the time when the Registration Statement Form S-4 has become effective or any supplement or amendment thereto has been filedeffective, of the issuance of any stop order, of or the suspension suspensions of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement the Merger for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company The Parties shall cooperate and mutually agree upon (such agreement not provide the Other Party with a reasonable opportunity to be unreasonably withheld review and comment on any amendment or delayed), any response to comments of the SEC with respect supplement to the Joint Proxy Statement or and the Registration Statement and any amendment Form S-4 prior to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance filing such with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws will provide the Other Party with a copy of all such filings with the SEC to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall extent not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meetingotherwise publicly available. If, If at any time prior to the Effective Time, Parent or the Company has Knowledge of any event or circumstance information relating to Parent or Merger Subthe Company, or any of their respective officers officers, directors or directorsother Affiliates, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement Form S-4 or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Joint Proxy Statement shall so that any such document would not contain include any untrue statement misstatement of a material fact or fail 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, at (i) the time Party that discovers such information shall promptly notify the Registration Statement is declared effectiveOther Party and, (ii) to the time the Proxy Statement (or any extent required by applicable Laws, an appropriate amendment thereof or supplement thereto) is first mailed describing such information shall be filed as promptly as reasonably practicable with the SEC and, to the extent required under applicable Law, disseminated to the stockholders of Parent and the stockholders Company. Notwithstanding anything contained in this Agreement to the contrary, no amendment or supplement (including by incorporation by reference) to the Joint Proxy Statement or the Form S-4 shall be made without the approval of the Company and (iii) the time of the both Parent Stockholders’ Meeting and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that the Company, in connection with a Company Stockholders’ Meeting. IfAdverse Recommendation Change, at any time prior or the Parent, in connection with a Parent Adverse Recommendation Change, may amend or supplement the Joint Proxy Statement and/or the Form S-4 (including by incorporation by reference) pursuant to the Effective Timea Qualifying Amendment to effect such a change, any event or circumstance and in such event, this right of approval shall apply only with respect to information relating to the CompanyOther Party or its business, financial condition or their respective officers or directorsresults of operations, should and shall be discovered by subject to the Company that should right of each Party to have its Board’s deliberations and conclusions be set forth in accurately described. A “Qualifying Amendment” means an amendment or a supplement to the Registration Joint Proxy Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided Form S-4 (including by it for use in the Registration Statement (and other related materialsincorporation by reference) if and to the extent that such information is determined to have become false it contains (a) a Company Adverse Recommendation Change or misleading in any material respect or as otherwise required by applicable Laws. All documents that a Parent Adverse Recommendation Change, (b) a statement of the reasons of the Company is responsible Board or Parent Board (as the case may be) for filing with making such Company Adverse Recommendation Change or Parent Adverse Recommendation Change, and (c) additional information reasonably related to the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Actforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Medytox Solutions, Inc.), Merger Agreement (CollabRx, Inc.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement, Parent (i) the SPAC and the Company shall use commercially reasonable efforts prepare and file with the SEC a joint information statement/proxy statement (as amended or supplemented, the “Proxy Statement”) to jointly be sent to the stockholders of the SPAC and to the stockholders of the Company relating to (A) with respect to the Company’s stockholders, the action to be taken by certain stockholders of the Company pursuant to the Written Consent and (B) with respect to the SPAC’s stockholders, the meeting of the SPAC’s stockholders (the “SPAC Stockholders’ Meeting”) to be held to (I) provide the stockholders of the SPAC with the opportunity to redeem their shares of SPAC Class A Common Stock by tendering such shares for redemption not later than 5:00 p.m. Eastern Time on the date that is two Business Days prior to the date of the SPAC Stockholders’ Meeting (the “SPAC Stockholder Redemption”) and (II) consider approval and adoption of (1) this Agreement and the Merger, (2) the issuance of the New SPAC Common Stock and New SPAC Series A Preferred Stock as contemplated by this Agreement, (3) the equity incentive plan (the “SPAC Equity Incentive Plan”) in the form attached hereto as Exhibit G, with any changes thereto as the Company and the SPAC may mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed by either party), (4) an employee stock purchase plan (the “SPAC ESPP”) in the form attached hereto as Exhibit H, with any changes thereto as the Company and the SPAC may mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed by either party), (5) the New SPAC Certificate of Incorporation and Certificate of Designations, (6) the election of directors as contemplated by Section 7.15, and (7) any other proposals the parties deem necessary or appropriate to effectuate the Merger (collectively, the “SPAC Proposals”) and (ii) the SPAC shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent New SPAC Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”A) to be sent issued to stockholders of the Company pursuant to this Agreement or (B) held by the stockholders of Parent the SPAC immediately prior to the Effective Time. The Company shall furnish all information concerning the Company as the SPAC may reasonably request in connection with such actions and the preparation of the CompanyProxy Statement and Registration Statement. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent The SPAC and the Company each shall use commercially their reasonable best efforts to (i1) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements Laws applicable thereto, and (ii2) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (i3) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (ii4) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after finalization of the Registration Statement becomes effectiveProxy Statement, (i) Parent each of the Company and the SPAC shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call . Each of the Parent Stockholders’ Meeting in accordance with Nevada Law SPAC and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent the SPAC or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . The SPAC and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent New SPAC Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional informationinformation and responses thereto. Each of Parent the SPAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld withheld, conditioned or delayed), ) any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure The SPAC represents that the information supplied by Parent the SPAC for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and SPAC, (iii) the time of each of the Parent Stockholders’ Meeting and the Company SPAC Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the SPAC or Merger Sub, or their respective officers or directors, should be discovered by the SPAC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the SPAC shall promptly inform the Company. All documents that the SPAC is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement or any current report on Form 8-K shall not, at (i) the time the Registration Statement is declared effectiveeffective (in the case of the Registration Statement or the Proxy Statement) or at the time filed (in the case of a current report on Form 8-K), (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders SPAC (in the case of the Company and Registration Statement or the Proxy Statement), (iii) the time of the Parent SPAC Stockholders’ Meeting (in the case of the Registration Statement or the Proxy Statement), and (iv) the Company Stockholders’ MeetingEffective Time (in the case of the Registration Statement or the Proxy Statement), contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsSPAC. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 2 contracts
Sources: Business Combination Agreement (Tailwind Acquisition Corp.), Business Combination Agreement (Tailwind Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon Promptly after delivery of the Merger Notice (for as reasonably practicable following long as such Merger Notice remains in effect), Flex and Nextracker shall prepare, and Flex shall file with the date SEC, a proxy statement with respect to the Flex Shareholders Meeting (which proxy statement may be combined, in Flex’s sole and absolute discretion, with the proxy statement for any annual general meeting of this AgreementFlex) and a prospectus that Nextracker will use to offer the Nextracker Class A Shares to be issued in the Issuance (such proxy statement and prospectus, Parent together with all amendments and supplements thereto, the Company “Proxy/Prospectus”), and Flex and Nextracker shall use commercially reasonable efforts to jointly prepare prepare, and Nextracker shall file with the SEC, a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent with the SEC, pursuant to which the offer and sale/issuance sale of Nextracker Class A Shares to be issued in the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall Issuance will be registered under pursuant to the Securities ActAct and which will include the Proxy/Prospectus as a part thereof (such registration statement, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplementedtogether with all amendments and supplements thereto, the “Proxy S-4 Registration Statement”) to be sent to the stockholders of Parent and ). After delivery of the Company. Pursuant Merger Notice (for as long as such Merger Notice remains in effect), Flex and Nextracker each shall use its reasonable best efforts to the Proxy Statement, (i) Parent shall solicit proxies respond promptly to comments from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as have the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause the S-4 Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable and (ii) keep the Registration Statement effective after such filing, to maintain such effectiveness for as long as is necessary to consummate the Merger and the other Transactions. As , and Flex shall promptly as practicable after thereafter mail the Registration Statement becomes effective, (i) Parent shall distribute the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement Proxy/Prospectus to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Lawshareholders of Flex. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation After delivery of the Merger Notice (for as long as such Merger Notice remains in effect), Nextracker shall also use its reasonable best efforts to satisfy, prior to the effective date of the S-4 Registration Statement, all necessary state securities applicable Laws or “blue sky” notice requirements to consummate the Transactions.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent without the approval After delivery of the Company Merger Notice (for as long as such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (bMerger Notice remains in effect), Parent will be permitted to make such filing or response in each of Flex and Nextracker shall promptly notify the absence of such approval if the basis other of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response receipt of information that, based on the advice of outside counsel to Parent, is required by all comments from the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdiction, or of any request by the SEC for any amendment of or supplement to the Proxy Statement Proxy/Prospectus or the S-4 Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each information and shall promptly provide to the other copies of Parent all correspondence between it or any of its Representatives and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement Proxy/Prospectus or S-4 Registration Statement. During such period of time, (i) Nextracker shall advise Flex, promptly after receipt of notice thereof, of the time of effectiveness of the S-4 Registration Statement and the issuance of any amendment to the Proxy Statement stop order relating thereto or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis suspension of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion qualification of Nextracker Class A Shares for offering or sale in such filing or response any jurisdiction, and each of information that, based on the advice of outside counsel to Parent, is required by the SEC Flex and United States securities Laws to be included therein.
(c) Parent Nextracker shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain have any untrue statement of a material fact such stop order or fail to state any material fact required to be stated therein suspension lifted, reversed or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effectiveotherwise terminated, (ii) Flex shall advise Nextracker, promptly after receipt of notice thereof, of the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders clearance of the Company Proxy/Prospectus and any order relating thereto, and each of Flex and Nextracker shall use its reasonable best efforts to have any such order lifted, reversed or otherwise terminated, and (iii) Flex will cause the time of each of Proxy/Prospectus, and Nextracker will cause the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the S-4 Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements provisions of the Securities Act Act.
(c) After delivery of the Merger Notice (for as long as such Merger Notice remains in effect), each of Flex and Nextracker will provide their respective legal counsel with a reasonable opportunity to review and comment on drafts of the Proxy/Prospectus, the S-4 Registration Statement and other documents related to the Flex Shareholders Meeting, the Merger, the Issuance, the Distribution and the Exchange Actother Transactions prior to filing such documents with the applicable Governmental Entity and mailing the applicable documents to Flex’s shareholders. Each Party will include in the Proxy/Prospectus, the S-4 Registration Statement and such other documents related to the Flex Shareholders Meeting, the Merger, the Issuance, the Distribution and the other Transactions comments reasonably and promptly proposed by the other Party or its legal counsel and each agrees that all information relating to Flex and its Subsidiaries included in the Proxy/Prospectus and the S-4 Registration Statement shall be in form and content satisfactory to Flex, acting reasonably, and all information relating to Nextracker and its Subsidiaries included in the Proxy/Prospectus and the S-4 Registration Statement shall be in form and content satisfactory to Nextracker, acting reasonably.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, If at any time prior to the Effective TimeDistribution Closing, any event or circumstance relating Flex determines in its sole and absolute discretion that the Newco Shares to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use issued in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise Distribution are required by applicable Laws. All documents Law to be registered on a registration statement on Form 10 (such registration statement, together with all amendments and supplements thereto, the “Form 10 Registration Statement”), Flex shall thereafter notify Nextracker of such determination and, following such notice, the covenants and representations of the Parties herein applicable to the Proxy/Prospectus shall apply to such Form 10 Registration Statement mutatis mutandis; provided, that Flex may, following such notice, determine in its sole and absolute discretion that a Form 10 Registration Statement is not so required and upon notice to Nextracker the Company is responsible for filing obligations herein with respect thereto shall be of no further force and effect (unless otherwise subsequently determined by Flex in its sole and absolute discretion upon notice to Nextracker).
(e) Flex shall bear all of the SEC costs and expenses in connection with the Merger or Proxy/Prospectus and the other transactions actions contemplated by this Agreement hereby with respect hereto and Nextracker shall comply as to form bear all of the costs and substance expenses in all material respects connection with the applicable requirements of the Securities Act S-4 Registration Statement and the Exchange Actactions contemplated hereby with respect hereto.
Appears in 2 contracts
Sources: Merger Agreement (Flex Ltd.), Merger Agreement (Nextracker Inc.)
Proxy Statement; Registration Statement. (a) As soon Parent and the Company shall, as promptly as reasonably practicable following the date of this Agreement, Parent prepare and file with the SEC a proxy statement relating to the meetings of the Company’s stockholders and Parent’s stockholders to be held in connection with this Agreement and the Company shall use commercially reasonable efforts to jointly prepare transactions contemplated by this Agreement (together with any amendments or supplements thereto, the “Joint Proxy Statement”) and a registration statement on Form S-4 (together with all any amendments or supplements thereto, the “Registration StatementForm S-4”) to be filed by Parent with the SEC), pursuant to in which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall Joint Proxy Statement will be registered under the Securities Act, which Registration Statement shall include included as a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders prospectus. Each of Parent and of the Company. Pursuant Company shall, upon the reasonable request by the Other Party, furnish to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to Other Party all information as may be reasonably necessary or appropriate advisable in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance connection with the Company Organizational Documents, Joint Proxy Statement or the Laws Form S-4. Each of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially its reasonable best efforts to (i) cause have the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing and (ii) to keep the Registration Statement Form S-4 effective as long as is necessary to consummate the Transactionstransactions contemplated by this Agreement. As promptly as practicable after Each of the Registration Statement becomes effective, (i) Parent Parties shall distribute mail or deliver the Joint Proxy Statement to its stockholdersrespective stockholders as promptly as reasonably practicable after the Form S-4 has been declared effective under the Securities Act. Parent may file the opinion described in Section 7.2(c), andand the Company may file the opinion described in Section 7.3(c), pursuant theretoin each case with the SEC by post-effective amendment to the Form S-4. Parent shall also use its reasonable best efforts to obtain all necessary state securities Law or “blue sky” permits and approvals required to carry out the transactions contemplated by this Agreement, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it and the holders of Company Common Stock as may be reasonably be requested by Parent in connection with any such actions action. Each of Parent and the preparation Company shall, as promptly as reasonably practicable after receipt thereof, provide the Other Party copies of any written comments and advise the Registration Statement.
(b) No filing ofOther Party of any oral comments, or amendment or supplement with respect to the Joint Proxy Statement or and/or the Registration Statement will be made by Parent without Form S-4 received from the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included thereinSEC. Parent will Each Party shall also advise the CompanyOther Party, as promptly as reasonably practicable after it receives receipt of notice thereof, of the time when the Registration Statement Form S-4 has become effective or any supplement or amendment thereto has been filedeffective, of the issuance of any stop order, of or the suspension suspensions of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement the Merger for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company The Parties shall cooperate and mutually agree upon (such agreement not provide the Other Party with a reasonable opportunity to be unreasonably withheld review and comment on any amendment or delayed), any response to comments of the SEC with respect supplement to the Joint Proxy Statement or and the Registration Statement and any amendment Form S-4 prior to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance filing such with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws will provide the Other Party with a copy of all such filings with the SEC to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall extent not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meetingotherwise publicly available. If, If at any time prior to the Effective Time, Parent or the Company has Knowledge of any event or circumstance information relating to Parent or Merger Subthe Company, or any of their respective officers officers, directors or directorsother Affiliates, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement Form S-4 or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Joint Proxy Statement shall so that any such document would not contain include any untrue statement misstatement of a material fact or fail 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, at (i) the time Party that discovers such information shall promptly notify the Registration Statement is declared effectiveOther Party and, (ii) to the time the Proxy Statement (or any extent required by applicable Laws, an appropriate amendment thereof or supplement thereto) is first mailed describing such information shall be filed as promptly as reasonably practicable with the SEC and, to the extent required under applicable Law, disseminated to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ MeetingCompany. If, at any time prior Notwithstanding anything contained in this Agreement to the Effective Timecontrary, any event no amendment or circumstance relating supplement (including by incorporation by reference) to the Joint Proxy Statement or the Form S-4 shall be made without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or their respective officers or directorsconditioned; provided, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statementhowever, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC Company, in connection with a Change in Company Recommendation, and Parent, in connection with a Change in Parent Recommendation, may amend or supplement the Merger or Joint Proxy Statement and/or the other transactions contemplated Form S-4 (including by incorporation by reference) pursuant to a Qualifying Amendment to effect such a change, and in such event, this Agreement right of approval shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.apply only
Appears in 2 contracts
Sources: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Proxy Statement; Registration Statement. (a) As soon Parent and the Company shall, as promptly as reasonably practicable following the date of this Agreement, Parent prepare and file with the SEC a proxy statement relating to the meetings of the Company’s stockholders and Parent’s stockholders to be held in connection with this Agreement and the Company shall use commercially reasonable efforts to jointly prepare transactions contemplated by this Agreement (together with any amendments or supplements thereto, the “Joint Proxy Statement”) and a registration statement on Form S-4 (together with all any amendments or supplements thereto, the “Registration StatementForm S-4”) to be filed by Parent with the SEC), pursuant to in which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall Joint Proxy Statement will be registered under the Securities Act, which Registration Statement shall include included as a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders prospectus. Each of Parent and of the Company. Pursuant Company shall, upon the reasonable request by the Other Party, furnish to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to Other Party all information as may be reasonably necessary or appropriate advisable in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance connection with the Company Organizational Documents, Joint Proxy Statement or the Laws Form S-4. Each of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially its reasonable best efforts to (i) cause have the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing and (ii) to keep the Registration Statement Form S-4 effective as long as is necessary to consummate the Transactionstransactions contemplated by this Agreement. As promptly as practicable after Each of the Registration Statement becomes effective, (i) Parent Parties shall distribute mail or deliver the Joint Proxy Statement to its stockholdersrespective stockholders as promptly as reasonably practicable after the Form S-4 has been declared effective under the Securities Act. Parent may file the opinion described in Section 7.2(d), andand the Company may file the opinion described in Section 7.3(d), pursuant theretoin each case with the SEC by post-effective amendment to the Form S-4. Parent shall also use its reasonable best efforts to obtain all necessary state securities Law or “blue sky” permits and approvals required to carry out the transactions contemplated by this Agreement, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it and the holders of Company Common Stock as may be reasonably be requested by Parent in connection with any such actions action. Each of Parent and the preparation Company shall, as promptly as reasonably practicable after receipt thereof, provide the Other Party copies of any written comments and advise the Registration Statement.
(b) No filing ofOther Party of any oral comments, or amendment or supplement with respect to the Joint Proxy Statement or and/or the Registration Statement will be made by Parent without Form S-4 received from the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included thereinSEC. Parent will Each Party shall also advise the CompanyOther Party, as promptly as reasonably practicable after it receives receipt of notice thereof, of the time when the Registration Statement Form S-4 has become effective or any supplement or amendment thereto has been filedeffective, of the issuance of any stop order, of or the suspension suspensions of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement the Merger for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company The Parties shall cooperate and mutually agree upon (such agreement not provide the Other Party with a reasonable opportunity to be unreasonably withheld review and comment on any amendment or delayed), any response to comments of the SEC with respect supplement to the Joint Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time Form S-4 prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.such
Appears in 2 contracts
Sources: Merger Agreement (Amtech Systems Inc), Merger Agreement (Btu International Inc)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the Agreement Date (but in any event no later than 30 days after the date of this Agreement), Parent and (i) the Company shall use commercially reasonable efforts to jointly prepare a registration proxy statement on Form S-4 relating to the Company Stockholder Meeting (together with all amendments and supplements thereto, the “Registration Statement”) to be filed by Parent with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent in preliminary form and (ii) Parent and the Company shall jointly prepare, and Parent shall file with the SEC, a registration statement on Form S-4, which shall include the Proxy Statement and the prospectus of Parent relating to the stockholders registration under the Securities Act of the issuance of Parent and of Stock in connection with the Company. Pursuant Merger (as amended or supplemented from time to time, such prospectus, together with the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval Proxy Statement/Prospectus” and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectivelysuch registration statement, the “Registration Statement”). Without limiting the foregoing, Parent Proposals”) and (ii) the Company shall solicit proxies from each use their reasonable best efforts to provide all information reasonably necessary to prepare, and shall cooperate, and cause their respective accountants and other advisors to cooperate, in the Company’s stockholders preparation of, any pro forma financial statements and related footnotes to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine extent required to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable included in the reasonable determination Registration Statement.
(b) Each of the Company. Parent and the Company shall use its commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable theretohave, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from following the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause filing thereof, the Registration Statement to be declared effective under the Securities Act as promptly as practicable and the Proxy Statement/Prospectus to be cleared by the SEC and its staff under the Exchange Act, (ii) keep the Registration Statement effective as long as is necessary to consummate the TransactionsMerger and (iii) respond as promptly as reasonably practicable to any comments or requests for additional information from the SEC with respect to the Proxy Statement/Prospectus or the Registration Statement, as applicable. As Parent, on the one hand, and the Company, on the other hand, shall, as promptly as practicable after the receipt thereof, provide the other parties with copies of any written comments, and advise the other party of any oral comments, with respect to the Proxy Statement/Prospectus and the Registration Statement becomes effectivereceived by such party from the SEC, (i) Parent shall distribute including any request from the SEC for amendments or supplements to the Proxy Statement Statement/Prospectus and the Registration Statement, and shall provide the other with copies of all material or substantive written correspondence (including all responses to SEC comments) and a summary of all oral communications between it and its stockholdersrepresentatives, andon the one hand, pursuant theretoand the SEC, shall call on the other hand. Each of Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it or its Affiliates as may be reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and Proxy Statement.
/Prospectus as required by applicable Law. Notwithstanding the foregoing, prior to filing the Registration Statement (bor any amendment or supplement thereto) or filing or mailing the Proxy Statement/Prospectus (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each of Parent and the Company shall provide the other Party and its counsel a reasonable opportunity to review such document or response (including the proposed final version of such document or response) and consider in good faith the comments of the other party in connection with any such document or response. No filing of, or amendment or supplement to to, the Proxy Statement Statement/Prospectus or the Registration Statement will be made by Parent or the Company without the approval of the Company other Party (such approval not to be unreasonably withheld, conditioned or delayed); provided. Neither Parent nor its representatives shall agree to participate in any material or substantive meeting or conference (including by telephone) with the SEC, howeveror any member of the staff thereof, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response is solely in the absence respect of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests the Proxy Statement/Prospectus unless it consults with the Company in advance and, to the extent permitted by the SEC SEC, allows the Company to participate. Neither the Company nor its representatives shall agree to participate in any material or substantive meeting or conference (including by telephone) with the SEC, or any member of the staff thereof, that is solely in respect of the Registration Statement or the Proxy Statement/Prospectus unless it consults with Parent in advance and, to the extent permitted by the SEC, allows Parent to participate.
(c) As promptly as practicable after the Registration Statement is declared effective, but in any event within two Business Days after the Registration Statement is declared effective, the Company shall file the definitive Proxy Statement/Prospectus and cause the definitive Proxy Statement/Prospectus to be mailed to the Company Stockholders. The Company shall take all necessary action in consultation with Parent, including establishing a record date for the Company Stockholder Meeting (which record date shall be prior to the effectiveness of the Registration Statement) and completing a broker search (and additional informationbroker searches, if necessary) pursuant to Rule 14a-13 of the Exchange Act, which shall be no later than 20 Business Days prior to the record date (unless Parent and the Company otherwise agree), to permit the foregoing. Subject to the terms and conditions of this Agreement, including Section 4.6, the Proxy Statement/Prospectus will include the Company Board Recommendation. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not agrees to be unreasonably withheld correct or delayed), update as promptly as reasonably practicable any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required provided by the SEC and United States securities Laws to be included therein.
(c) Parent shall it for use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and or Proxy Statement/Prospectus which, if not corrected or updated, would result in the Registration Statement or Proxy Statement shall not contain any untrue statement Statement/Prospectus containing a misstatement of a material fact or fail omitting to state any a 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth would result in an amendment or a supplement to the Registration Statement or the Proxy Statement/Prospectus failing to comply as to form with the requirements of applicable Law and, if required by applicable Law or Parent and the Company otherwise agree, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and mail to the extent that Company Stockholders any related amendment or supplement.
(d) As promptly as practicable after the Agreement Date, Parent shall prepare and make such information is determined to have become false filings as are required under applicable state securities or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC “blue sky” laws in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act hereby, and the Exchange ActCompany shall assist Parent as may be necessary to comply with such state securities or “blue sky” laws.
Appears in 2 contracts
Sources: Merger Agreement (Rocket Companies, Inc.), Merger Agreement (Redfin Corp)
Proxy Statement; Registration Statement. (a) As soon promptly as practicable after the execution of this Agreement and receipt of the Initial PCAOB Financial Statements, (i) GigCapital5 (with the assistance and cooperation of the Company as reasonably practicable requested by GigCapital5, including delivery of the PCAOB Financial Statements in accordance with Section 7.14) shall prepare and file with the SEC a joint information statement/proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of GigCapital5 and from which the Company may derive an information statement that it can send to the stockholders of the Company relating to (A) with respect to the Company’s stockholders, the action to be taken by certain stockholders of the Company pursuant to the Written Consent and (B) with respect to GigCapital5’s stockholders, the meeting of GigCapital5’s stockholders (the “GigCapital5 Stockholders’ Meeting”) to be held to consider approval and adoption of (1) this Agreement and the Merger, (2) the second amended and restated GigCapital5 Certificate of Incorporation as set forth on Exhibit F, (3) the Equity Plan (as defined below), (4) the classes of the members of the QTI Holdings Board as of immediately following the date Effective Time, (5) the election of this Agreementthe Initial Post-Closing QTI Holdings Directors to serve as the members of the QTI Holdings Board as of immediately following the Effective Time and until their respective successors are duly elected or appointed and qualified, Parent and (6) any other proposals the Company parties deem necessary to effectuate the Merger (collectively, the “GigCapital5 Proposals”) and (ii) GigCapital5 shall use commercially reasonable efforts to jointly prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent GigCapital5 Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent issued to the stockholders of Parent the Company pursuant to this Agreement. The Company shall furnish all information concerning the Company as GigCapital5 may reasonably request in connection with such actions and the preparation of the CompanyProxy Statement and Registration Statement. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent GigCapital5 and the Company each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable practicable, and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactionstransactions contemplated hereby. Prior to the effective date of the Registration Statement, GigCapital5 shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of GigCapital5 Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after the Registration Statement becomes is declared effective, (i) Parent each of the Company and GigCapital5 shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law . Each of GigCapital5 and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement Statement, will be made by Parent GigCapital5 or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned conditioned, or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . GigCapital5 and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent GigCapital5 Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent GigCapital5 and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure GigCapital5 represents that the information supplied by Parent GigCapital5 for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and GigCapital5, (iii) the time of each of the Parent Stockholders’ Meeting and the Company GigCapital5 Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to GigCapital5 or Merger Sub, or their respective officers or directors, should be discovered by GigCapital5 which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, GigCapital5 shall promptly inform the Company. All documents that GigCapital5 is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and GigCapital5, (iii) the time of the Parent Stockholders’ Meeting and the Company GigCapital5 Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsGigCapital5. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(e) Without the prior written consent of the Company, the GigCapital5 Proposals shall be the only matters (other than procedural matters) which GigCapital5 shall propose to be acted on by GigCapital5 stockholders at the GigCapital5 Stockholders’ Meeting.
Appears in 2 contracts
Sources: Business Combination Agreement (Qt Imaging Holdings, Inc.), Business Combination Agreement (GigCapital5, Inc.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement, (i) Parent and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments theretoprepare, the “Registration Statement”) to be filed by and Parent shall file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant relating to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor to be held to consider approval and adoption of (A) this Agreement and the Transactions, (B) the issuance of Parent Class A Common Stock as contemplated by this Agreement, (C) the Second Amended & Restated Parent Certificate of Incorporation (and such proposal, including any separate or unbundled proposals as are required to implement the foregoing, collectively, the “Unbundling Precatory Proposals”), (D) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, Stock Incentive Plan (as defined below) and (BE) any approval of other proposals the Company and Parent shall hereafter mutually determine Parties deem necessary to be necessary or appropriate in order to effect effectuate the Merger and the other transactions contemplated by this Agreement Transactions (collectively, the “Parent Proposals”) and (ii) Parent and the Company shall solicit proxies from prepare, and Parent shall file with the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting SEC a registration statement on the following matters Form S-4 (together with all amendments thereto, the “Company Stockholders’ MeetingRegistration Statement”) in favor which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of (A) the adoption and approval shares of Parent Class A Common Stock to be issued to the Company Holders pursuant to this Agreement Agreement. The Company shall promptly furnish all information concerning the Company as Parent may reasonably request in connection with such actions and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders preparation of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware Proxy Statement and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyRegistration Statement. Parent and the Company each shall use commercially their reasonable best efforts to (i) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation of the Registration Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent or the Company without the approval of the Company other Party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent and the Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Class A Common Stock to be issued or issuable to the holders of Company Securities Holders in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure represents that the information supplied by Parent for inclusion in the Registration Proxy Statement and the Proxy Registration Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 misleadingnot, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and Company, (iii) the time of the Parent Stockholders’ Meeting Meeting, and (iv) the Company Stockholders’ MeetingFirst Effective Time, contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements therein (other than with respect to the Registration Statement, in the light of the circumstances under which they were made) not misleading. If, at any time prior to the First Effective Time, any event or circumstance relating to Parent, Merger Sub I, Merger Sub II, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Mergers or the other Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Proxy Statement and the Registration Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the Company, (iii) the time of the Parent Stockholders’ Meeting, and (iv) the First Effective Time, contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements therein (other than with respect to the Registration Statement, in the light of the circumstances under which they were made) not misleading. If, at any time prior to the First Effective Time, any event or circumstance relating to the Company, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger Mergers or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 2 contracts
Sources: Business Combination Agreement (Rosecliff Acquisition Corp I), Business Combination Agreement (Rosecliff Acquisition Corp I)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement, Parent (i) SPAC and the Company shall use commercially reasonable efforts prepare and file with the SEC a joint consent solicitation/proxy statement (as amended or supplemented, the “Proxy Statement”) to jointly be sent to the stockholders of SPAC and to the stockholders of the Company relating to (A) with respect to the Company’s stockholders, the action to be taken by certain stockholders of the Company pursuant to the Written Consent and (B) with respect to SPAC’s stockholders, the special meeting of SPAC’s stockholders (the “SPAC Stockholders’ Meeting”) to be held to consider approval and adoption of (1) this Agreement and the Merger, (2) the issuance of New SPAC Common Stock as contemplated by this Agreement, (3) the second amended and restated SPAC Certificate of Incorporation as set forth on Exhibit B-1, (4) the Stock Incentive Plan and (5) any other proposals the Parties deem necessary to effectuate the Transactions (collectively, the “SPAC Proposals”) and (ii) SPAC shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent New SPAC Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”A) to be sent issued to the stockholders of Parent and of the Company. Pursuant Company pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, held by the holders stockholders of SPAC immediately prior to the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyEffective Time. Parent SPAC and the Company each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, SPAC shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of New SPAC Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after finalization of the Registration Statement becomes effectiveProxy Statement, (i) Parent each of the Company and SPAC shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law . Each of SPAC and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent SPAC or the Company without the approval of the Company other Party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . SPAC and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent New SPAC Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent SPAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure SPAC represents that the information supplied by Parent SPAC for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of SPAC and the Company and Company, (iii) the time of each of the Parent Stockholders’ Meeting and the Company SPAC Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to SPAC or Merger Sub, or their respective officers or directors, should be discovered by SPAC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, SPAC shall promptly inform the Company. All documents that SPAC is responsible for filing with the SEC in connection with the Merger or the other Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent SPAC and the stockholders of the Company and Company, (iii) the time of the Parent Stockholders’ Meeting and the Company SPAC Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsSPAC. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 2 contracts
Sources: Business Combination Agreement (Maquia Capital Acquisition Corp), Business Combination Agreement (Maquia Capital Acquisition Corp)
Proxy Statement; Registration Statement. (a) As soon promptly as practicable after the execution of this Agreement and receipt of the PCAOB Financials, (i) HCIC (with the assistance and cooperation of the Company as reasonably practicable following the date of this Agreement, Parent and the Company requested by HCIC) shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy information statement/prospectus proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent HCIC and to the shareholders of the Company. Pursuant Company (A) as an information statement relating, with respect to the Proxy StatementCompany’s stockholders, to the action to be taken by shareholders of the Company pursuant to the Transaction Consent or by vote at a Company Shareholders Meeting and (iB) Parent as a proxy statement, with respect to HCIC’s stockholders, in which HCIC shall solicit proxies from ParentHCIC’s stockholders to vote at the special meeting of ParentHCIC’s stockholders called for the purpose of voting on the following matters (the “Parent HCIC Stockholders’ Meeting”) in favor of (A1) the approval and adoption of this Agreement and the Ancillary Agreements Mergers, (2) the issuance of PubCo Shares as contemplated by this Agreement and the transactions contemplated hereby Subscription Agreements, (3) of the material differences between HCIC’s existing certificate of incorporation and the Amended and Restated Memorandum and Articles of Association of PubCo as set forth on Exhibit E, (4) the approval and adoption of an equity incentive plan, in form and substance reasonably acceptable to HCIC and the Company that provides for grant of awards to employees and other service providers of the Surviving Corporation and its Subsidiaries in the form of options, restricted shares, restricted share units or thereby, including other equity-based awards based on PubCo Shares with a total pool of awards of PubCo Shares not exceeding twelve percent (12%) of the Merger, aggregate number of PubCo Shares outstanding at the Closing and (B5) any approval of other proposals the Company and Parent shall hereafter mutually determine parties deem necessary to be necessary or appropriate in order to effect effectuate the Merger and the other transactions contemplated by this Agreement Transactions (collectively, the “Parent HCIC Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (Cii) PubCo and HCIC shall file with the adjournment SEC a registration statement on Form F-4 (together with all amendments thereto, the “Registration Statement”) in which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of PubCo Shares and PubCo Warrants to be issued to the shareholders and warrantholders of the Company Stockholders’ Meetingand HCIC pursuant to this Agreement. PubCo, if necessary or desirable in the reasonable determination of the Company. Parent HCIC and the Company each shall use commercially their reasonable best efforts to (i) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i1) Parent each of the Company and HCIC shall distribute mail the Proxy Statement to its stockholders, and, pursuant thereto, their respective stockholders and (2) HCIC shall call and hold the Parent HCIC Stockholders’ Meeting in accordance with Nevada Law as promptly as practicable thereafter. Each of HCIC and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement, provided, however, that neither HCIC nor the Company shall use any such information for any purposes other than those contemplated by this Agreement unless: such Party obtains the prior written consent of the other to such use (which consent shall not be unreasonably withheld, conditioned or delayed); or to the extent that use of such information is required to avoid violation of applicable Law.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent HCIC or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . HCIC and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock PubCo Shares to be issued or issuable to the holders shareholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company parties hereto shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld withheld, conditioned or delayed), ) any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure HCIC represents that the information supplied by Parent HCIC for inclusion in the Registration Statement and the Proxy Statement does not and shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and HCIC, (iii) the time of each of the Parent HCIC Stockholders’ Meeting and (iv) the Company Stockholders’ MeetingEffective Time. If, at any time prior to the Effective Time, any event or circumstance relating to Parent HCIC, First Merger Sub or Second Merger Sub, or their respective officers or directors, should be discovered by Parent HCIC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent HCIC shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ HCIC is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement does not and shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and HCIC, (iii) the time of the Parent HCIC Stockholders’ Meeting and (iv) the Company Stockholders’ MeetingEffective Time. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsHCIC. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Hennessy Capital Investment Corp. V), Merger Agreement (Hennessy Capital Investment Corp. V)
Proxy Statement; Registration Statement. (ai) As soon promptly as reasonably practicable following the date execution and delivery of this Agreement, Parent and the Company Shareholder shall use commercially reasonable efforts to jointly cause New PubCo to, in accordance with this Section 7.1(a), prepare and file, and Company shall assist and cooperate with the preparation and filing of a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent with the SEC, pursuant to which the offer and sale/issuance including a proxy statement of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities ActNew PubCo, which Registration Statement shall include a joint proxy statement/prospectus on Form F-4 (as such filing is amended or supplemented, the “Proxy Statement” and together with such registration statement as such filings are amended or supplemented, the “Registration Statement”) for the purposes of (I) registering under the Securities Act, to the extent permitted by applicable rules and regulations of the SEC, the New PubCo Class A Ordinary Shares to be sent issued in connection with the Transactions (including any New PubCo Class A Ordinary Shares to be issued in connection with SPAC Warrants) (together, the stockholders of Parent and “Registration Shares”), (II) providing SPAC Shareholders with notice of the Company. Pursuant opportunity to redeem SPAC Class A Ordinary Shares (the Proxy Statement“SPAC Shareholder Redemption”), and (iIII) Parent shall solicit soliciting proxies from Parent’s stockholders holders of SPAC Class A Ordinary Shares to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) Special Meeting in favor of of: (A1) the approval and adoption of this Agreement and approval of the Ancillary Agreements Transactions; (2) the approval and authorization of the First Plan of Merger and the transactions contemplated hereby or thereby, including Second Plan of Merger by way of special resolution pursuant to the Merger, Companies Act; (3) the issuance of New PubCo Ordinary Shares in connection with the Transactions in accordance with this Agreement; (4) the adoption of the New PubCo A&R Memorandum and Articles of Association by way of special resolution pursuant to the Companies Act; and (B5) any approval of other proposals the Company and Parent shall hereafter mutually determine to be Parties deem necessary or appropriate in order desirable to effect consummate the Merger and the other transactions contemplated by this Agreement Transactions (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval SPAC Shareholder Matters”), and (C) . Without the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (ii) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation of the Registration Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent without the approval prior written consent of the Company (each such approval consent not to be unreasonably withheld, conditioned or delayed); provided, however, that subject the SPAC Shareholder Matters shall be the only matters (other than procedural matters) which SPAC shall propose to prior compliance be acted on by the SPAC Shareholders at the Special Meeting. The Registration Statement will comply as to form and substance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis applicable requirements of the Company’s failure Securities Act and the Exchange Act. Subject to consent is Section 11.10, the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice one hand, and SPAC, on the other, shall each be responsible for and pay one-half of outside counsel to Parentthe cost for the preparation, is required by filing and mailing of the Registration Statement and other related fees.
(ii) SPAC shall file the definitive Proxy Statement with the SEC and United States securities Laws cause the Proxy Statement to be included thereinmailed to its shareholders of record, as of the record date to be established by the board of directors of SPAC, as promptly as practicable following the effectiveness of the Registration Statement (such date, the “Proxy Clearance Date”).
(iii) Prior to each filing with the SEC of the Registration Statement and any other documents to be filed with the SEC that relate to the Transactions, both preliminary and final, and any amendment or supplement thereto, New PubCo will make available to the Company and SPAC a draft and will provide the Company and SPAC with a reasonable opportunity to comment on such draft and shall consider such comments in good faith. Parent New PubCo shall not file any such documents with the SEC without the prior written consent of the Company and SPAC (such consent not to be unreasonably withheld, conditioned or delayed). New PubCo will advise the CompanyCompany and SPAC, promptly after it receives notice thereof, of of: (A) the time when the Registration Statement has become effective or been filed; (B) the effectiveness of the Registration Statement; (C) the filing of any supplement or amendment thereto has been filed, of to the Registration Statement; (D) the issuance of any stop order, of order by the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdiction, or of SEC; (E) any request by the SEC for amendment of the Proxy Statement or Registration Statement; (F) any comments from the SEC relating to the Registration Statement or comments thereon and responses thereto or thereto; and (G) requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect information relating to the Proxy Statement or Registration Statement. New PubCo shall promptly respond to any SEC comments on the Registration Statement and any amendment shall use commercially reasonable efforts to the Proxy Statement or have the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required cleared by the SEC under the Securities Act as promptly as practicable; provided that prior to responding to any requests or comments from the SEC, New PubCo will make available to the Company and United States securities Laws SPAC drafts of any such response and provide the Company and SPAC with a reasonable opportunity to be included thereincomment on such drafts.
(civ) Parent If, at any time prior to the Special Meeting, there shall use its reasonable best efforts be discovered any information that should be set forth in an amendment or supplement to ensure that the information supplied by Parent for inclusion in the Registration Statement and so that the Proxy Registration Statement shall would not contain include any untrue statement misstatement of a material fact or fail omit to state any material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in light of the circumstances under which they were made, not misleading at (i) the time New PubCo shall promptly file an amendment or supplement to the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meetingcontaining such information. If, at any time prior to the Effective TimeClosing, the Company discovers any information, event or circumstance relating to Parent the Company, its business or Merger Subany of its Affiliates, officers, directors or their respective officers or directors, should be discovered by Parent which employees that should be set forth in an amendment or a supplement to the Registration Proxy Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in so that the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in would not include any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement misstatement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, then the Company shall promptly inform ParentNew PubCo and SPAC of such information, event or circumstance.
(v) New PubCo or SPAC, as applicable, shall make all necessary filings with respect to the Transactions under the Securities Act, the Exchange Act and applicable “blue sky” laws and any rules and regulations thereunder. The Company agrees to use commercially reasonable efforts to promptly provide New PubCo or SPAC, as applicable, with all information in its possession concerning the business, management, operations and financial condition of the Company and the Company Subsidiaries, in each case, reasonably requested by New PubCo or SPAC for inclusion in the Registration Statement. The Company shall promptly correct any information provided by it for use in cause the Registration Statement (officers and employees of the Company and the Company Subsidiaries to be reasonably available to New PubCo, SPAC and their respective counsel, auditors and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC advisors in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements drafting of the Securities Act Registration Statement and responding in a timely manner to comments on the Exchange ActRegistration Statement from the SEC.
Appears in 1 contract
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the PCAOB Audited Financials, Parent (i) VectoIQ and the Company shall use commercially reasonable efforts prepare and file with the SEC a joint information statement/proxy statement (as amended or supplemented, the “Proxy Statement”) to jointly be sent to the stockholders of VectoIQ and to the stockholders of the Company as an information statements relating (A) with respect to the Company’s stockholders, the action to be taken by certain stockholders of the Company pursuant to the Written Consent and (B) with respect to VectoIQ’s stockholders, the meeting of VectoIQ’s stockholders (the “VectoIQ Stockholders’ Meeting”) to be held to consider approval and adoption of (1) this Agreement and the Merger, (2) the issuance of VectoIQ Common Stock as contemplated by this Agreement, (3) the second amended and restated VectoIQ Certificate of Incorporation as set forth on Exhibit C and (4) any other proposals the parties deem necessary to effectuate the Merger (collectively, the “VectoIQ Proposals”) and (ii) VectoIQ shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent VectoIQ Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”A) to be sent issued to the stockholders of Parent and of the Company. Pursuant Company pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval held by the stockholders of other proposals VectoIQ immediately prior to the Effective Time. The Company shall furnish all information concerning the Company and Parent shall hereafter mutually determine to be necessary or appropriate as VectoIQ may reasonably request in order to effect the Merger connection with such actions and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting preparation of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption Proxy Statement and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyRegistration Statement. Parent VectoIQ and the Company each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactionstransactions contemplated hereby. Prior to the effective date of the Registration Statement, VectoIQ shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of VectoIQ Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after finalization of the Registration Statement becomes effectiveProxy Statement, (i) Parent each of the Company and VectoIQ shall distribute mail the Proxy Statement to its their stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law . Each of VectoIQ and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent VectoIQ or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . VectoIQ and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent VectoIQ Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent VectoIQ and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure VectoIQ represents that the information supplied by Parent VectoIQ for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and VectoIQ, (iii) the time of each of the Parent Stockholders’ Meeting and the Company VectoIQ Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to VectoIQ or Merger Sub, or their respective officers or directors, should be discovered by VectoIQ which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, VectoIQ shall promptly inform the Company. All documents that VectoIQ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and VectoIQ, (iii) the time of the Parent Stockholders’ Meeting and the Company VectoIQ Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsVectoIQ. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Sources: Business Combination Agreement (VectoIQ Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement, Parent and (i) the Company shall use commercially reasonable efforts prepare and file with the SEC (with appropriate requests for confidential treatment) under the Exchange Act a proxy statement/prospectus and a form of proxy (or, to jointly the extent a Parent Stockholders' Meeting, as defined below, is required to be held, the Company and the Parent shall prepare and file with the SEC under the Exchange Act a joint proxy statement/prospectus and forms of proxies) (such proxy statement/prospectus or joint proxy statement/prospectus, as the case may be, together with any amendments thereof or supplements thereto, in each case in the form or forms delivered to the stockholders of the Company and, if applicable, the stockholders of the Parent, the "Proxy Statement") relating to the Company Stockholders' Meeting and the vote of the stockholders of the Company with respect to the Merger (and, if applicable, the Parent Stockholders' Meeting and the vote of the stockholders of the Parent with respect to the issuance of Parent Common Stock in connection with the Merger) and (ii) following clearance by the SEC of the Proxy Statement, the Parent shall prepare and file with the SEC under the Securities Act a registration statement on Form S-4 (such registration statement, together with all any amendments thereof or supplements thereto, the “"Registration Statement”) to "), in which the Proxy Statement will be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent distributed to holders of shares of Company Common Stock and Company Options pursuant to the stockholders of Parent and of the CompanyMerger. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. The Parent and the Company shall use commercially reasonable efforts to (i) will cause the Registration Statement when filed with and the SEC Proxy Statement to comply in all material respects with all legal requirements applicable theretothe Securities Act, the Exchange Act and (ii) respond as promptly as reasonably practicable to the rules and resolve all comments received from regulations thereunder. Each of the SEC concerning Parent and the Registration Statement. Parent Company shall use all commercially reasonable efforts to (i) have or cause the Registration Statement to be declared become effective under the Securities Act as promptly as practicable and (ii) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute including clearing the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation of the Registration Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent without the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(dSEC) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.as
Appears in 1 contract
Sources: Merger Agreement (Red Lion California LTD Partnership)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and delivery of the PCAOB Financials, Parent and (i) Holdco, the Company and SPAC shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent and Holdco shall file with the SEC, pursuant to which SEC the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplementedsupplemented from time to time, the “Proxy Statement/Prospectus”) to be sent to the stockholders of Parent and of the Company. Pursuant SPAC Stockholders relating to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called SPAC Stockholders (the “SPAC Stockholders Meeting”) for the purpose of voting on soliciting proxies from SPAC Stockholders for the following matters to be acted upon at the SPAC Stockholders’ Meeting and providing the public stockholders an opportunity in accordance with SPAC Organizational Documents to have their shares of SPAC Common Stock redeemed (the “Parent Stockholders’ MeetingRedemption”) in favor of (A) conjunction with the approval and adoption of this Agreement and stockholder vote on the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) SPAC Proposals and (ii) Holdco, the Company and SPAC shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters prepare and Holdco shall file (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements Company and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance SPAC shall cause Holdco to file) with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) a registration statement on Form F-4 or such other matters applicable form as the Company and Parent shall hereafter mutually determine SPAC may agree (as amended or supplemented from time to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectivelytime, the “Company Stockholder Approval MattersRegistration Statement”), and (C) in which the adjournment Proxy Statement/Prospectus will be included, in connection with the registration under the Securities Act of the Company Stockholders’ Meeting, if necessary or desirable Holdco Ordinary Shares and Holdco Warrants to be issued in the reasonable determination of the CompanyMerger. Parent and the Company Each Party shall use commercially its reasonable best efforts to (i) cause the Registration Statement when filed and the Proxy Statement/Prospectus to comply with the SEC applicable rules and regulations promulgated by the SEC, including providing any necessary opinions of counsel, to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause have the Registration Statement to be declared effective under the Securities Act as promptly as practicable after such filing, and (ii) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Each of Holdco, the Company and SPAC shall furnish all information as may be reasonably requested by the others in connection with any such action and the preparation, filing and distribution of the Registration Statement and the Proxy Statement/Prospectus; provided, however, that no Party shall use any such information for any purposes other than those contemplated by this Agreement unless such party obtains the prior written consent of the other. SPAC also agrees to use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the Transactions, and the Company shall furnish all information concerning the Company and the Company Subsidiaries as may be reasonably requested in connection with any such action; provided that, without the prior written consent of the Company, SPAC shall not use any such information for any purposes other than to obtain necessary state securities law or “Blue Sky” permits and approvals.
(b) As promptly as practicable after the Registration Statement becomes shall have become effective, (i) Parent SPAC shall distribute use its reasonable best efforts to cause the Proxy Statement Statement/Prospectus to its stockholders, and, pursuant thereto, shall call be mailed to the Parent SPAC Stockholders as of the record date for the SPAC Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware LawMeeting. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation of the Registration Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent without the approval of the Company (such approval not to be unreasonably withheldto, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments the Proxy Statement/Prospectus will be made (in each case including documents incorporated by reference therein) by SPAC, the Company or Holdco without providing the other with a reasonable opportunity to review and comment thereon and responses thereto or requests each Party shall give reasonable and good faith consideration to any comments made by the SEC for additional informationany other party and their counsel. Each of Parent SPAC, the Company and Holdco will be given a reasonable opportunity to participate in the response to any SEC comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with SPAC, the Company or Holdco or their counsel in any discussions or meetings with the SEC. SPAC shall comply with all applicable rules and regulations promulgated by the SEC, any applicable rules and regulations of Nasdaq, SPAC Organizational Documents, and this Agreement in the preparation, filing and distribution of the Proxy Statement/Prospectus, any solicitation of proxies thereunder, the calling and holding of the SPAC Stockholders’ Meeting and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included thereinRedemption.
(c) Parent shall use its reasonable best efforts If at any time prior to ensure that the Merger Effective Time, any information supplied relating to SPAC, the Company or Holdco or any of their respective affiliates, directors or officers, should be discovered by Parent for inclusion SPAC, the Company or Holdco which should be set forth in an amendment or supplement to either the Registration Statement and or the Proxy Statement shall Statement/Prospectus, so that either such document would not contain include any untrue statement misstatement of a material fact or fail 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 are made, not misleading at misleading, the party that discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the SPAC Stockholders.
(id) Each of SPAC, the time Company and Holdco will advise the other parties hereto promptly after it receives any oral or written request by the SEC for amendment of the Proxy Statement/Prospectus or the Registration Statement is declared effectiveStatement, (ii) as applicable, or comments thereon and responses thereto, any oral or written comments or requests in relation to the time SPAC Stockholders’ Meeting or the Redemption, or requests by the SEC for additional information and each party will promptly provide the other with copies of any written communication between it or any of its Representatives, on the one hand, and the SEC, any state securities commission or their respective staffs, on the other hand, with respect to the Proxy Statement Statement/Prospectus, the Registration Statement, the Exchanges, the Merger, the SPAC Stockholders’ Meeting or the Redemption. SPAC, the Company and Holdco shall use their respective reasonable best efforts, after consultation with each other, to resolve all such requests or comments with respect to the Proxy Statement/Prospectus, the Registration Statement, the SPAC Stockholders’ Meeting or the Redemption, as applicable, as promptly as reasonably practicable after receipt thereof.
(or any amendment thereof or supplement theretoe) is first mailed to stockholders Without limiting the generality of Parent the foregoing, each of SPAC, the Company and Holdco shall cooperate with each other in the preparation of each of the Proxy Statement/Prospectus and the stockholders Registration Statement, and each of the Company and SPAC shall furnish Holdco with all information concerning it and its affiliates as the providing party (iiiafter consulting with counsel) may deem reasonably necessary or advisable in connection with the preparation of the Proxy Statement/Prospectus or the Registration Statement, as applicable.
(f) SPAC, the Company and Holdco shall notify each other promptly of the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to when the Registration Statement has become effective, of the issuance of any stop order or suspension of the Proxy Statement, Parent shall promptly inform qualification of the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false Holdco Ordinary Shares or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC Holdco Warrants issuable in connection with the Merger for offering or sale in any jurisdiction, or of the receipt of any comments from the SEC or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements staff of the Securities Act SEC and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied of any request by the Company SEC or the staff of the SEC for inclusion in the Registration Statement and amendments or supplements to the Proxy Statement shall not contain any untrue statement of a material fact Statement/Prospectus or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Actadditional information.
Appears in 1 contract
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the PCAOB Audited Financials, (i) Parent and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by and Parent shall file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint consent solicitation/proxy statement/prospectus statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and to the stockholders of the Company. Pursuant Company relating to (A) with respect to the Proxy StatementCompany’s stockholders, the action to be taken by certain stockholders of the Company pursuant to the Written Consent and (iB) Parent shall solicit proxies from with respect to Parent’s stockholders to vote at stockholders, the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the to be held to consider approval and adoption of (1) this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, (2) the issuance of Parent Common Stock and New Parent Warrants as contemplated by this Agreement, (3) the second amended and restated Parent Certificate of Incorporation as set forth on Exhibit D, (4) the Stock Incentive Plan and (B5) any approval of other proposals the Company and Parent shall hereafter mutually determine to be parties deem necessary or appropriate in order advisable to effect effectuate the Merger and the other transactions contemplated by this Agreement Transactions (collectively, the “Parent Proposals”) and (ii) Parent shall prepare and file with the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting SEC a registration statement on the following matters Form S-4 (together with all amendments thereto, the “Company Stockholders’ MeetingRegistration Statement”) in favor which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock and New Parent Warrants to be issued to the stockholders of the Company (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of Company Preferred Stock issued pursuant to the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (BNet Exercise) such other matters as the Company and Parent shall hereafter mutually determine pursuant to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyAgreement. Parent and the Company each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC or its staff concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after filing with the SEC and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, Parent shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of Parent Common Stock and New Parent Warrants, in each case to be issued or issuable to the stockholders of the Company (including the holders of Company Preferred Stock issued pursuant to the Net Exercise) pursuant to this Agreement. As promptly as practicable after the effective time of the Registration Statement becomes effectiveStatement, (i) each of the Company and Parent shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call the . Each of Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent and the Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock or New Parent Warrants to be issued or issuable to the stockholders of the Company (including the holders of Company Securities Preferred Stock issued pursuant to the Net Exercise) in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC or its staff for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC or its staff for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld withheld, conditioned or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure represents that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the Company, (iii) the time of the Parent Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meetingmisleading. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ Parent is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(d) The Company shall use its reasonable best efforts to ensure represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the Company, (iii) the time of the Parent Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Sources: Business Combination Agreement (New Beginnings Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon as reasonably practicable following the date of this Agreement, (i) Parent (with the assistance and cooperation of the Company as reasonably requested by Parent) shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent and file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy statement/prospectus statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy StatementParent, (i) in which Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including approval of the Merger, (B) the issuance of shares of Parent Common Stock as contemplated by this Agreement, (C) the approval and adoption of the Second Amended and Restated Certificate of Incorporation of Parent to read as set forth on Exhibit A, (D) the approval and adoption of an equity incentive plan, in form and substance reasonably acceptable to Parent and the Company that provides for grant of awards to employees and other service providers of the Surviving Corporation and its Subsidiaries in the form of options, restricted stock, restricted stock units or other equity-based awards based on Parent Common Stock with a total pool of awards of Parent Common Stock not exceeding, together with the number of shares of Parent Common Stock that would be issuable immediately after the Effective Time upon the vesting of all Converted RSUs or Converted Options, 10% of the number of shares of Parent Common Stock outstanding as of immediately following the Closing (the “Parent LTIP”), which Parent LTIP shall have an annual “evergreen” increase of not more than 3% of the shares of Parent Common Stock outstanding as of the day prior to such increase, and (BE) any approval of other proposals the Company and Parent shall hereafter mutually determine parties deem necessary to be necessary or appropriate in order to effect effectuate the Merger and the other transactions contemplated by this Agreement Transactions (collectively, the “Parent Proposals”) ), and (ii) the Company Parent shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption prepare and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance file with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, a registration statement on Form S-4 (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectivelytogether with all amendments thereto, the “Company Stockholder Approval MattersRegistration Statement”), and (C) which Registration Statement shall include the adjournment Proxy Statement in connection with the registration under the Securities Act of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination shares of the Company. Parent and the Company Common Stock to be issued to Participating Securityholders pursuant to this Agreement.
(b) Parent shall use commercially reasonable efforts to (iw) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (iix) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or the Registration Statement. Parent shall use commercially reasonable efforts to , (iy) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiz) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute mail the Proxy Statement to its stockholders, and, pursuant thereto, shall call . Each of Parent and the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(bc) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent without the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent and the Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities Participating Securityholders in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld withheld, conditioned or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(cd) Parent shall use its reasonable best efforts to ensure represents that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Parent, (iii) the time of each of the Parent Stockholders’ Meeting Meeting, and (iv) the Company Stockholders’ MeetingEffective Time. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(de) The Company shall use its reasonable best efforts to ensure represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and Parent, (iii) the time of the Parent Stockholders’ Meeting Meeting, and (iv) the Company Stockholders’ MeetingEffective Time. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent.
(f) As promptly as practicable after the initial filing of the Registration Statement, the Company (with the assistance and cooperation of Parent as reasonably requested by the Company) shall prepare an information statement relating to the action to be taken by the stockholders of the Company pursuant to the Written Consent. The As promptly as practicable after the date on which the Registration Statement becomes effective, the Company shall promptly correct any information provided by it for use deliver the Consent Solicitation Statement and the prospectus contained in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Actits stockholders.
Appears in 1 contract
Sources: Merger Agreement (Breeze Holdings Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following the date stockholders' meetings of CJC and BMOC at which the Business Combination will be submitted to the stockholders of CJC and BMOC for their approval, (i) each of Patriot, Wyndham and BMOC shall prepare and file with the SEC (with appropriate requests for confidential treatment, unless the parties hereto otherwise agree) under the Exchange Act, a joint proxy statement/prospectus and forms of proxies (such joint proxy statement/prospectus together with any amendments to supplements thereto, the "Proxy Statement") relating to the stockholder meetings of each of Patriot, Wyndham and BMOC and the vote of the stockholders of (A) Patriot and Wyndham, with respect to this Agreement as ratified by New Patriot pursuant to the Patriot Ratification Agreement, Parent (B) Patriot, with respect to an amendment to the Pairing Agreement (the "Pairing Agreement Amendment") pursuant to and in accordance with the terms of the Stock Purchase Agreement, and (C) BMOC, with respect to the BMOC Stock Issuance, the Pairing Agreement Amendment and the Company BMOC Charter Amendment, and (ii) following clearance by the SEC of the Proxy Statement, Patriot and BMOC shall use commercially reasonable efforts to jointly prepare and file with the SEC under the Securities Act a registration statement on Form S-4 (such registration statement, together with all any amendments or supplements thereto, the “Registration Statement”) to "Form S-4"), in which the Proxy Statement will be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered registration under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor Act of (A) the approval Paired Shares of Patriot Stock and adoption BMOC Stock to be distributed to the stockholders of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including Wyndham in the Merger, and (B) any approval the Paired Shares of other proposals the Company Patriot Stock and Parent shall hereafter mutually determine BMOC Stock to be necessary or appropriate issued and sold to the Principal Stockholder pursuant to the Stock Purchase Agreement, (C) the shares of Unpaired Patriot Stock to be issued and sold to the Principal Stockholder pursuant to the Stock Purchase Agreement, (D) the Paired Shares of Patriot Stock and BMOC Stock to be issued to the Principal Stockholder upon conversion of the shares of Unpaired Patriot Stock to be issued and sold to the Principal Stockholder pursuant to the Stock Purchase Agreement, and (E) as contemplated by the Registration Rights Agreement, the resale of certain Paired Shares of Patriot Stock and BMOC Stock to be issued in order to effect the Merger and pursuant to the other transactions contemplated by this Stock Purchase Agreement (collectively, the “Parent Proposals”) and (ii) securities referred to in the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of foregoing clauses (A) - (E) being referred to herein collectively as the adoption "Registered Securities"). Patriot and approval of this Agreement BMOC will cause the Proxy Statement and the Ancillary Agreements and Form S-4 to comply as to form in all material respects with the transactions contemplated hereby or thereby, including the Merger, by the holders applicable provisions of the Capital Stock in accordance with the Company Organizational DocumentsSecurities Act, the Laws of the State of Delaware and the State of Nevada Exchange Act and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”)thereunder, and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) Wyndham will cause the Registration Proxy Statement when filed with the SEC to comply as to form in all material respects with all legal requirements the applicable theretoprovisions of the Exchange Act and the rules and regulations thereunder. Each of Patriot and BMOC, on the one hand, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from Wyndham, on the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (ii) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute the Proxy Statement to its stockholders, and, pursuant theretoother hand, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it about itself and its business and operations and all necessary financial information to the other as the other may reasonably be requested by Parent request in connection with such actions and the preparation of the Registration Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or and the Registration Statement will be made by Parent without the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional informationForm S-4. Each of Parent Patriot and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent BMOC shall use its reasonable best efforts efforts, and Wyndham will cooperate with them, to ensure that have the information supplied Form S-4 declared effective by Parent for inclusion in the Registration Statement and SEC as promptly as practicable (including clearing the Proxy Statement shall not contain any untrue statement with the SEC). Each of a material fact or fail Patriot, Wyndham, and BMOC agrees promptly 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Proxy Statement (and other related materials) the Form S-4 if and to the extent that such information is determined to shall have become false or misleading in any material respect respect, and each of the parties hereto further agrees to take all steps necessary to amend or supplement the Proxy Statement and, in the case of Patriot and BMOC, the Form S-4, and to cause the Proxy Statement and, in the case of Patriot and BMOC, the Form S-4, as otherwise so amended or supplemented to be filed with the SEC and to be disseminated to their respective stockholders, in each case as and to the extent required by applicable Lawsfederal and state securities laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form Each of Patriot, Wyndham, and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure BMOC agrees that the information supplied provided by the Company it for inclusion in the Registration Statement and the Proxy Statement shall or the Form S-4 and each amendment or supplement thereto, at the time of mailing thereof and at the time of the respective meetings of stockholders of Patriot, Wyndham, and BMOC, will not contain any include an untrue statement of a material fact or fail omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Patriot and BMOC will advise Wyndham, at and deliver copies (iif any) to Wyndham, promptly after either receives notice thereof, of any request by the time the Registration Statement is declared effective, (ii) the time SEC for amendment of the Proxy Statement (or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information, or notice of the time when the Form S-4 has become effective or any supplement or amendment thereof or supplement thereto) is first mailed to has been filed, the stockholders issuance of Parent and any stop order, the stockholders suspension of the Company and (iii) the time qualification of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC Registered Securities issuable in connection with the Merger or pursuant to the Stock Purchase or of the Registered Securities for offering or sale in any jurisdiction.
(b) Each of Patriot, Wyndham and BMOC shall use its best efforts to timely mail the Proxy Statement to its stockholders. It shall be a condition to the mailing of the Proxy Statement that (i) Patriot shall have received "comfort" letters from Coopers & ▇▇▇▇▇▇▇ LLP, independent public accountants for Wyndham, of the kind contemplated by the Statement of Auditing Standards with respect to Letters to Underwriters promulgated by the American Institute of Certified Public Accountants (the "AICPA Statement"), dated as of the date on which the Form S-4 shall become effective (and Patriot shall also receive such a letter as of the Effective Time), each addressed to Patriot and BMOC, in form reasonably satisfactory to Patriot and BMOC, concerning the procedures undertaken by Coopers & ▇▇▇▇▇▇▇ LLP with respect to the financial statements and information of Wyndham and the Wyndham Subsidiaries contained in the Form S-4 and the other matters contemplated by the AICPA Statement and otherwise customary in scope and substance for letters delivered by independent public accountants in connection with transactions such as those contemplated by this Agreement and (ii) Wyndham shall comply have received a "comfort" letter from Ernst & Young LLP, independent public accountants for Patriot and BMOC, of the kind contemplated by the AICPA Statement, dated as of the date on which the Form S-4 shall become effective (and Wyndham shall also receive such a letter as of the Effective Time), each addressed to Wyndham, in form reasonably satisfactory to Wyndham, concerning the procedures undertaken by Ernst & Young LLP with respect to the financial statements and information of Patriot and BMOC and their respective Subsidiaries contained in the Form S-4 and the other matters contemplated by the AICPA Statement and otherwise customary in scope and substance for letters delivered by independent public accountants in all material respects connection with the applicable requirements of the Securities Act and the Exchange Acttransactions such as those contemplated by this Agreement.
Appears in 1 contract
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the PCAOB Audited Financials, Parent (i) Kensington and the Company shall use commercially reasonable efforts prepare and file with the SEC a joint information statement/proxy statement (as amended or supplemented, the “Proxy Statement”) to jointly be sent to the stockholders of Kensington and to the stockholders of the Company as information statements relating to (A) with respect to the Company’s stockholders, the action to be taken by certain stockholders of the Company pursuant to the Written Consent and (B) with respect to Kensington’s stockholders, the meeting of Kensington’s stockholders (the “Kensington Stockholders’ Meeting”) to be held to consider approval and adoption of (1) this Agreement and the Merger, (2) the issuance of the New Kensington Common Stock as contemplated by this Agreement, (3) the Kensington Certificate Amendment and (4) any other proposals the parties deem necessary to effectuate the Merger (collectively, the “Kensington Proposals”) and (ii) Kensington shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent New Kensington Class A Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”A) to be sent issued to certain stockholders of the Company pursuant to this Agreement or (B) held by the stockholders of Parent Kensington immediately prior to the Effective Time. The Company shall furnish all information concerning the Company as Kensington may reasonably request in connection with such actions and the preparation of the CompanyProxy Statement and Registration Statement. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent Kensington and the Company each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements Laws applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, Kensington shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of Kensington Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after finalization of the Registration Statement becomes effectiveProxy Statement, (i) Parent each of the Company and Kensington shall distribute mail the Proxy Statement to its their stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law . Each of Kensington and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent Kensington or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . Kensington and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Kensington Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional informationinformation and responses thereto. Each of Parent Kensington and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure Kensington represents that the information supplied by Parent Kensington for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Kensington, (iii) the time of each of the Parent Stockholders’ Meeting and the Company Kensington Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to Kensington or Merger Sub, or their respective officers or directors, should be discovered by Kensington which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Kensington shall promptly inform the Company. All documents that Kensington is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement or any current report on Form 8-K shall not, at (i) the time the Registration Statement is declared effectiveeffective (in the case of the Registration Statement or the Proxy Statement) or at the time filed (in the case of a current report on Form 8-K), (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and Kensington (in the stockholders case of the Company and Registration Statement or the Proxy Statement), (iii) the time of the Parent Kensington Stockholders’ Meeting (in the case of the Registration Statement or the Proxy Statement), and (iv) the Company Stockholders’ MeetingEffective Time (in the case of the Registration Statement or the Proxy Statement), contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsKensington. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(e) Following the final determination of the Exchange Ratio at the Anticipated Closing Date in accordance with Section 3.06 (either as a result of the mutual agreement of the parties or the determination of the Accounting Firm), Kensington and the Company shall mutually agree on the form and substance of a press release setting forth the anticipated Exchange Ratio as of the Anticipated Closing Date (the “Exchange Ratio Announcement”), which the parties shall cause to be publicly disclosed (and which Kensington shall file on Form 8-K) no later than four (4) Business Days prior to the Kensington Stockholders’ Meeting.
Appears in 1 contract
Sources: Business Combination Agreement (Kensington Capital Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date of this Agreement, Parent BSII and the Company shall prepare, and the Company shall file with the SEC the Registration Statement (which shall include the Company Financial Statements and the Company Pro Forma Financial Statements), in which a preliminary proxy statement in connection with the Merger to be sent to the Pre-Closing BSII Holders among other things, relating to the BSII Extraordinary General Meeting in accordance with and as required by the BSII Governing Document, Applicable Law, and any applicable rules and regulations of the SEC and the Qualified Stock Exchange (such proxy statement, together with any amendments or supplements thereto, the “Proxy Statement”) for the purposes of the approval of the Transaction Proposals will be included as a prospectus. BSII and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together cooperate, and cause their respective Subsidiaries, as applicable, to reasonably cooperate, with all amendments thereto, each other and their respective representatives in the “preparation of the Proxy Statement and the Registration Statement”) to be filed by Parent with . Without limiting the SEC, pursuant to which the offer and sale/issuance generality of the shares of Parent Common Stock comprising foregoing, as promptly as reasonably practicable after the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption date of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or therebyin any event by no later than March 31, including the Merger2025, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from deliver to BSII the Company’s stockholders to vote at Company Pro Forma Financial Statements and the special meeting IFRS, PCAOB-audited consolidated balance sheets and statements of the Company’s stockholders called income, other comprehensive loss, shareholders’ equity and cash flows as of and for the purpose of voting on fiscal year ended December 31, 2024, together with the following matters auditor’s report thereon (the “Company Stockholders’ MeetingAudited FY24 Financial Statements”) ), which shall each comply in favor of (A) the adoption all material respects with applicable accounting requirements and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Securities Act applicable to the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect as a registrant under the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyRegistration Statement. Parent BSII and the Company shall (x) as promptly as reasonably practicable after the Company Audited FY24 Financial Statements are available, file pre-effective amendments to the Proxy Statement and Registration Statement to include the Company Audited FY24 Financial Statements and (y) use their commercially reasonable efforts to (i) cause the Proxy Statement and the Registration Statement when filed (as so amended) to comply with the SEC to comply in all material respects with all legal requirements applicable theretorules and regulations promulgated by the SEC, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent , to have the Registration Statement declared effective under the Securities Act as promptly as practicable after the filing thereof and by no later than the Effectiveness Deadline, and to keep the Registration Statement effective (1) as long as is necessary to consummate the Merger and the other Transactions and (2) until the earlier of (A) the date on which the registration statement on Form F-1 to be filed by the Company pursuant to Section 2.1.1 of the Registration Rights Agreement, registering the resale of all Company Exchange Shares, Company Exchange Warrants and Company Warrant Shares held or to be held by the Non-Public Eligible BSII Shareholders is declared effective under the Securities Act or (B) there are no Registrable Securities (as defined in the Registration Rights Agreement) outstanding; provided that, the Company and BSII shall use commercially reasonable efforts to (i) cause not allow the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (ii) keep the unless such Registration Statement effective as long as is necessary to consummate includes the Transactions. As promptly as practicable after the Registration Statement becomes effective, Company Audited FY24 Financial Statements.
(ib) Parent shall distribute the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law BSII and (ii) the Company shall distribute use commercially reasonable efforts to obtain all necessary state securities law or “blue sky” permits and approvals required to carry out the Proxy Statement to the Company’s stockholdersMerger, and, pursuant thereto, shall call and the Company Stockholders’ Meeting in accordance with Delaware Law. The Company and BSII shall promptly furnish all information concerning it the Company and BSII, respectively, as may be reasonably be requested by Parent in connection with any such actions and the preparation of the Registration Statementaction.
(bc) No filing ofEach of BSII and the Company shall use reasonable best efforts to promptly furnish to each other party all information concerning itself, its Subsidiaries, officers, directors, managers, members and shareholders, as applicable, and such other matters, in each case, as may be reasonably necessary in connection with and for inclusion in the Proxy Statement, the Registration Statement or any other statement, filing, notice or application made by or on behalf of BSII and the Company or their respective Subsidiaries, as applicable, to the SEC or the Qualified Stock Exchange in connection with the Merger and the other transactions contemplated hereby (including any amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent without Statement) (collectively, the approval of the “Offer Documents”).
(d) The Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Companyshall notify BSII, promptly after it the Company receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of order or the suspension of the qualification of the Parent Common Stock to be issued Company Class A Ordinary Shares, the Company Warrants or issuable to other securities of the holders of Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, of the initiation or written threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Proxy Statement or Statement, the Registration Statement or comments thereon and responses thereto the other Offer Documents or requests by the SEC for additional information. Each The Company shall provide BSII with a reasonable opportunity to review and comment on the Proxy Statement and the Registration Statement (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of Parent the SEC and give due consideration to all comments reasonably proposed by BSII in respect of such documents and responses prior to filing such with or sending such to the SEC, and, to the extent practicable, the Parties will provide each other with copies of all such filings made and correspondence with the SEC. BSII and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld withheld, conditioned or delayed), ) any response to comments of the SEC with respect to the Proxy Statement, the Registration Statement or the Registration Statement other Offer Documents and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(ce) Parent Each of BSII and the Company shall use its commercially reasonable best efforts to ensure that none of the information related to it or any of its Affiliates, supplied by Parent it or on its behalf for inclusion or incorporation by reference in (i) the Proxy Statement will, as of the date it is first mailed to the Pre-Closing BSII Holders, or at the time of the BSII Extraordinary General Meeting, or (ii) the Registration Statement will, at the time the Registration Statement is filed with the SEC, at each time at which it is amended, at the time it becomes effective under the Securities Act and at the Proxy Statement shall not Merger Effective Time, in either case, contain any untrue statement of a material fact or fail 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 are made, not misleading at misleading.
(if) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Merger Effective Time, any event or circumstance information relating to Parent BSII, the Company or Merger Subany of their respective Subsidiaries, Affiliates, directors or officers, as applicable, or their respective officers or directors, should be the Company Shareholders is discovered by Parent which should any of BSII or the Company and is required to be set forth in an amendment or a supplement to either the Proxy Statement or the Registration Statement, so that the Proxy Statement or the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct would not include any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement misstatement of a material fact or fail 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, at (i) the time party that discovers such information shall promptly notify the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any other parties and an appropriate amendment thereof or supplement thereto) is first mailed describing such information shall, subject to the stockholders other provisions of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. Ifthis Section 9.04, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered promptly filed by the Company that should be set forth in an amendment or a supplement to with the Registration Statement or the Proxy StatementSEC and, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that Applicable Law, disseminated to the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange ActPre-Closing BSII Holders.
Appears in 1 contract
Sources: Business Combination Agreement (Black Spade Acquisition II Co)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement and receipt of the applicable PCAOB Financial Statements, (i) Athena (with the assistance and cooperation of the Company) shall prepare and file with the SEC a proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Athena relating the meeting of Athena’s stockholders (the “Athena Stockholders’ Meeting”) to be held to consider approval and adoption of (1) this Agreement and the Merger, (2) the issuance of Athena Common Stock as contemplated by this Agreement, Parent (3) the Heliogen, Inc. Certificate of Incorporation as set forth on Exhibit B, including the change of Athena’s name to “Heliogen, Inc.”, (4) the 2021 Equity Incentive Plan and the Company Employee Stock Purchase Plan, (5) the classes of the members of the Heliogen, Inc. Board as of immediately following the Effective Time, (6) the election of the Initial Post-Closing Heliogen, Inc. Directors to serve as the members of the Heliogen, Inc. Board as of immediately following the Effective Time and until their respective successors are duly elected or appointed and qualified, (7) any other proposals the parties deem necessary to effectuate the Merger and (8) adjournment of the Athena Stockholders’ Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (collectively, the “Athena Proposals”) and (ii) Athena shall use commercially reasonable efforts to jointly prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent Athena Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent issued to the stockholders of Parent the Company pursuant to this Agreement. The Company shall furnish all information concerning the Company as Athena may reasonably request in connection with such actions and the preparation of the CompanyProxy Statement and Registration Statement. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent Athena and the Company each shall use commercially their reasonable best efforts to (iI) cause the Proxy Statement or Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (iiII) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or Registration Statement. Parent shall use commercially reasonable efforts to , (iIII) cause the Proxy Statement/Registration Statement to be be, as applicable, cleared for filing and/or declared effective under the Securities Act as promptly as practicable and (iiIV) to keep the Proxy Statement/Registration Statement effective as long as is necessary to consummate the Transactionstransactions contemplated hereby. Prior to the effective date of the Registration Statement, Athena shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of Athena Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after the Registration Statement becomes is declared effective, (i) Parent each of the Company and Athena shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law . Each of Athena and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent Athena or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . Athena and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Athena Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent Athena and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure Athena represents that the information supplied by Parent Athena for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Athena, (iii) the time of each of the Parent Stockholders’ Meeting and the Company Athena Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to Athena or Merger Sub, or their respective officers or directors, should be discovered by Athena which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Athena shall promptly inform the Company. All documents that Athena is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and Athena, (iii) the time of the Parent Athena Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. Without limiting the foregoing, Athena shall use reasonable best efforts to ensure that the Proxy Statement does not, as of the date on which it is distributed to Athena’s stockholders, and as of the date of the Athena Stockholders’ Meeting and contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading (provided that Athena shall not be responsible for the accuracy or completeness of any information relating to the Company Stockholders’ Meetingor any other information furnished in writing by the Company for inclusion in the Proxy Statement). If, at any time prior to the Effective Time, any event or circumstance relating to the Company, Company or their respective officers or its directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsAthena. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Sources: Business Combination Agreement (Athena Technology Acquisition Corp.)
Proxy Statement; Registration Statement. (ai) As soon promptly as reasonably practicable following the date execution and delivery of this Agreement, Parent New PubCo shall, in accordance with this Section 7.1(a), prepare and file, and the Company and SPAC shall use commercially reasonable efforts to jointly prepare assist and cooperate with the preparation and filing of, a registration statement on Form S-4 F-4 with the SEC (together with all amendments theretosuch registration statement (including the Proxy Statement) as amended or supplemented, the “Registration Statement / Proxy Statement”) to be filed by Parent with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act), which Registration Statement registration statement shall include a joint proxy statement to be sent to the SPAC Stockholders in advance of the Special Meeting (such proxy statement/prospectus (, as amended or supplemented, the “Proxy Statement”) for the purposes of (I) registering under the Securities Act, to the extent permitted by applicable rules and regulations of the SEC, the New PubCo Ordinary Shares to be sent issued in connection with the Merger and the Contribution (including any New PubCo Ordinary Shares to the stockholders of Parent and be issued upon exercise of the Company. Pursuant to SPAC Warrants assumed by New PubCo) (together, the Proxy Statement“Registration Shares”), (iII) Parent shall solicit providing SPAC Stockholders with notice of the opportunity to redeem their shares of SPAC Class A Common Stock (the “SPAC Stockholder Redemption”), and (III) soliciting proxies from Parent’s stockholders holders of shares of SPAC Class A Common Stock to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) Special Meeting in favor of of: (A1) the approval and adoption of this Agreement and approval of the Ancillary Agreements and Transactions; (2) the transactions contemplated hereby or thereby, including approval of the Merger, and ; (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A3) the adoption and approval of this Agreement each other proposal that either the SEC or NASDAQ (or the respective staff members thereof) indicates is necessary in its comments to the Registration Statement / Proxy Statement or in correspondence related thereto; (4) other proposals the Parties deem necessary or appropriate to consummate the Transactions; and (5) the Ancillary Agreements adoption and approval of a proposal for the transactions contemplated hereby postponement or thereby, including the Merger, by the holders adjournment of the Capital Stock Special Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (collectively, the “SPAC Stockholder Matters”), all in accordance with and as required by the Company Organizational SPAC Governing Documents, the Laws of the State of Delaware applicable Legal Requirements, and the State of Nevada and the any applicable rules and regulations of the SEC and NasdaqNASDAQ. Each of New PubCo, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company SPAC shall use commercially its reasonable best efforts to (i) cause the Registration Statement when filed / Proxy Statement to comply as to form and substance with the SEC to comply in all material respects with all legal applicable requirements applicable thereto, of the Securities Act and (ii) respond as promptly as reasonably practicable to the Exchange Act and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause rules and regulations thereunder and keep the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (ii) keep the Registration / Proxy Statement effective as long as is necessary to consummate the Transactions. As .
(ii) SPAC shall file the definitive Proxy Statement with the SEC and cause such Proxy Statement to be mailed to its shareholders of record, as of the record date to be established by the board of directors of SPAC in accordance with Section 7.1(b), as promptly as practicable after following the effectiveness of the Registration Statement becomes effective, (i) Parent shall distribute the / Proxy Statement (such date, the “Proxy Clearance Date”).
(iii) Prior to its stockholders, and, pursuant thereto, shall call each filing with the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation SEC of the Registration Statement.
(b) No filing ofStatement / Proxy Statement and any other documents to be filed with the SEC that relate to the Transactions, or both preliminary and final, and any amendment or supplement thereto, New PubCo will make available to the Proxy Statement or Company and SPAC and their respective counsels a draft thereof and will provide the Registration Statement will be made by Parent Company and New PubCo (including their respective counsel) with a reasonable opportunity to comment on such draft and shall consider such comments in good faith. New PubCo shall not file any such documents with the SEC without the approval prior written consent of the Company and SPAC (such approval consent not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent New PubCo will advise the CompanyCompany and SPAC, promptly after it receives notice thereof, of of: (A) the time when the Registration Statement / Proxy Statement has become effective or been filed; (B) the effectiveness of the Registration Statement / Proxy Statement; (C) the filing of any supplement or amendment thereto has been filed, of to the Registration Statement / Proxy Statement; (D) the issuance of any stop order, order by the SEC or of the suspension initiation or written threat of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement any proceeding for offer or sale in any jurisdiction, or of such purpose; (E) any request by the SEC for amendment of the Registration Statement / Proxy Statement or Statement; (F) any comments from the SEC relating to the Registration Statement or comments thereon / Proxy Statement and responses thereto or thereto; and (G) requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not information relating to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and / Proxy Statement. New PubCo shall respond to any amendment to the Proxy Statement or SEC comments on the Registration Statement filed in response thereto; provided, however, that subject / Proxy Statement as promptly as practicable and shall use commercially reasonable efforts to prior compliance with this clause (b), Parent will be permitted to make such filing or response in have the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required Registration Statement / Proxy Statement cleared by the SEC under the Securities Act as promptly as practicable; provided that prior to responding to any requests or comments from the SEC, New PubCo will make available to the Company and United States securities Laws SPAC (including their respective counsels) drafts of any such response and provide the Company and SPAC (including their respective counsels) with a reasonable opportunity to be included therein.
(c) Parent comment on such drafts and will consider any such comments in good faith. Without limiting the foregoing, ahead of any subsequent filing of the Registration Statement / Proxy Statement, the Company shall use its reasonable best efforts to ensure that provide any financial statements (including pro forma financial statements) and information required by Regulation S-X and the information supplied by Parent other rules and regulations of the SEC for inclusion in the Registration Statement and the / Proxy Statement to the extent that the Financial Statements are no longer current under the Regulation S-X. All responses to SEC comments shall not contain any untrue statement of a material fact or fail be prepared in compliance with Section 7.14 (including Schedule 7.14) to state any material fact required to be stated therein or necessary in order to make the statements therein, in light extent of the circumstances under which they were made, not misleading at matters addressed thereunder.
(iiv) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective TimeSpecial Meeting, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should there shall be discovered by Parent which any information that should be set forth in an amendment or a supplement to the Registration Statement / Proxy Statement so that the Registration Statement / Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein not misleading, New PubCo shall promptly file an amendment or supplement to the Registration Statement / Proxy StatementStatement containing such information. At any time prior to the Closing, Parent the Company shall promptly inform SPAC and New PubCo of any action taken or not taken by the Company or any of its Subsidiaries or of any development regarding the Company or any of its Subsidiaries, in any such case which is known by the Company. Parent shall promptly correct any information provided by it for use in , that would cause the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the / Proxy Statement shall not to contain any an untrue statement of a material fact or fail omit to state any a material fact required to be stated therein or necessary in order to make the statements thereinstatements, in light of the circumstances under which they were made, not misleading; provided, at (i) that, if any such action shall be taken or fail to be taken or such development shall otherwise occur, SPAC, New PubCo and the time Company shall cooperate fully to cause an amendment or supplement to be made promptly to the Registration Statement is declared effective/ Proxy Statement, (ii) such that the time the Registration Statement / Proxy Statement (no longer contains an untrue statement of a material fact or any amendment thereof or supplement thereto) is first mailed omits to state a material fact necessary in order to make the stockholders of Parent and the stockholders statements, in light of the Company and (iii) circumstances under which they were made, not misleading; provided, further, however, that no information received by SPAC pursuant to this paragraph shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meetingparty who disclosed such information. If, at At any time prior to the Effective TimeClosing, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by SPAC shall promptly inform the Company and New PubCo of any action taken or not taken by SPAC or of any development regarding SPAC, in any such case which is known by SPAC, that should would cause the Registration Statement / Proxy Statement to contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in light of the circumstances under which they were made, not misleading; provided, that, if any such action shall be set forth in taken or fail to be taken or such development shall otherwise occur, SPAC, New PubCo and the Company shall cooperate fully to cause an amendment or a supplement to be made promptly to the Registration Statement or the / Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in such that the Registration Statement / Proxy Statement no longer contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in light of the circumstances under which they were made, not misleading; provided, further, however, that no information received by the Company and New PubCo pursuant to this paragraph shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the party who disclosed such information.
(v) New PubCo or SPAC, as applicable, shall make all necessary filings, as required for itself, with respect to the Transactions under the Securities Act, the Exchange Act and applicable “blue sky” laws and any rules and regulations thereunder.
(vi) Each of the Company, SPAC and New PubCo agrees to use commercially reasonable efforts to promptly furnish to the other Parties and their respective Representatives all information within its possession concerning itself, its Subsidiaries, officers, directors, managers, stockholders and other related materials) if and to the extent that equityholders, as well as information regarding such information is determined to have become false other matters as may be reasonably necessary or misleading in any material respect advisable or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC may be reasonably requested in connection with the Merger Registration Statement / Proxy Statement, a Current Report on Form 8-K, Report of Foreign Private Issuer on Form 6-K pursuant to the Exchange Act in connection with the Transactions, or any other statement, filing, notice or application made by or on behalf of SPAC, New PubCo or the other transactions contemplated by this Agreement shall comply as Company to form and substance any regulatory authority (including NASDAQ) in all material respects connection with the applicable requirements of the Securities Act and the Exchange ActTransactions.
Appears in 1 contract
Sources: Business Combination Agreement (Mercato Partners Acquisition Corp)
Proxy Statement; Registration Statement. (a) As soon as reasonably practicable following the date of this Agreement, (i) Parent (with the assistance and cooperation of the Company as reasonably requested by Parent) shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent and file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy statement/prospectus statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy StatementParent, (i) in which Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements Mergers, (B) the issuance of shares of Parent Common Stock as contemplated by this Agreement and the transactions contemplated hereby Subscription Agreements, (C) the approval and adoption of the Second Amended and Restated Certificate of Incorporation of Parent in a form to be mutually agreed to by the parties, (D) the approval and adoption of an equity incentive plan, in form and substance reasonably acceptable to Parent and the Company that provides for grant of awards to employees and other service providers of the Surviving Entity and its Subsidiaries in the form of options, restricted stock, restricted stock units or therebyother equity-based awards based on Parent Common Stock with a total pool of awards of Parent Common Stock not exceeding, including together with the Mergernumber of shares of Parent Common Stock that would be issuable immediately after the Effective Time upon the vesting of all Converted RSUs and Converted Options, 12% of the sum of (1) the number of shares of Parent Common Stock outstanding at the Closing and (2) the number of shares of Parent Common Stock issuable upon conversion of securities convertible into Parent Common Stock outstanding at the Closing (the “Parent Equity Incentive Plan”), which Parent Equity Incentive Plan shall have an annual “evergreen” increase of not more than 5% of the shares of Parent Common Stock outstanding as of the day prior to such increase, (E) the approval and adoption of an employee stock purchase plan, in form and substance reasonably acceptable to Parent and the Company, that provides for the sale of shares of Parent Common Stock to employees of the Surviving Entity and its Subsidiaries with a total pool of shares of Parent Common Stock not exceeding 2% of the sum of (x) the number of shares of Parent Common Stock outstanding at the Closing and (y) the number of shares of Parent Common Stock issuable upon conversion of securities convertible into Parent Common Stock outstanding at the Closing (the “Parent ESPP”), which Parent ESPP shall have an annual “evergreen” increase of 1% of the shares of Parent Common Stock outstanding as of the day prior to such increase, and (BF) any approval of other proposals the Company and Parent shall hereafter mutually determine parties deem necessary to be necessary or appropriate in order to effect effectuate the Merger Mergers and the other transactions contemplated by this Agreement Transactions (collectively, the “Parent Proposals”) ), and (ii) the Company Parent shall solicit proxies from the Company’s stockholders use commercially reasonable efforts to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption prepare and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance file with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, a registration statement on Form S-4 (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectivelytogether with all amendments thereto, the “Company Stockholder Approval MattersRegistration Statement”), which Registration Statement shall include the Proxy Statement as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued to the stockholders and (C) the adjournment optionholders of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Companypursuant to this Agreement. Parent and the Company shall use commercially reasonable efforts to (i) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute mail the Proxy Statement to its stockholders, and, pursuant thereto, shall call . Each of Parent and the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent and the Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders stockholders and optionholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), ) any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure represents that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Parent, (iii) the time of each of the Parent Stockholders’ Meeting Meeting, and (iv) the Company Stockholders’ MeetingEffective Time. If, at any time prior to the Effective Time, any event or circumstance relating to Parent Parent, First Merger Sub or Second Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ Parent is responsible for filing with the SEC in connection with the Merger Mergers or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and Parent, (iii) the time of the Parent Stockholders’ Meeting Meeting, and (iv) the Company Stockholders’ MeetingEffective Time. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger Mergers or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(e) As promptly as practicable after the initial filing of the Registration Statement, the Company (with the assistance and cooperation of Parent as reasonably requested by the Company) shall prepare an information statement relating to the action to be taken by stockholders of the Company pursuant to the Written Consent or by vote at a Company Stockholders Meeting . As promptly as practicable after the date on which the Registration Statement becomes effective, the Company shall deliver the Consent Solicitation Statement and the prospectus contained in the Registration Statement to its stockholders.
Appears in 1 contract
Sources: Merger Agreement (Isleworth Healthcare Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon promptly --------------------------------------- as reasonably practicable following after the date execution of this Agreement, Parent Newco and Concentric shall prepare and file the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent Proxy Statement with the SEC, pursuant to and Newco shall prepare and file the Registration Statement (in which the offer Proxy Statement will be included) with the SEC. Newco, NEXTLINK and sale/issuance of Concentric shall use their reasonable best efforts to cause the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, Registration Statement (which Registration Statement shall include a joint proxy statement/prospectus (also register such other securities issued or assumed in the Mergers or the Alternative Merger, as amended or supplementedapplicable, the “Proxy Statement”as is required by applicable law) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared become effective under the Securities 1933 Act as promptly soon after such filing as practicable and (ii) to keep the Registration Statement effective as long as is necessary to consummate the TransactionsMergers. As The Proxy Statement shall include the recommendation of the Board of Directors of Concentric in favor of approval and adoption of this Agreement and the Mergers, except to the extent the Board of Directors of Concentric shall have withdrawn or modified its approval or recommendation of this Agreement as permitted by Section 7.2(b). NEXTLINK shall cause the Proxy Statement to be mailed to its stockholders, and Concentric shall cause the Proxy Statement to be mailed to its stockholders, in each case as promptly as practicable after the Registration Statement becomes effective. The parties shall promptly provide copies, (i) Parent shall distribute consult with each other and prepare written responses with respect to any written comments received from the SEC with respect to the Proxy Statement to its stockholders, and, pursuant thereto, shall call and the Parent Stockholders’ Meeting in accordance with Nevada Law Registration Statement and (ii) advise one another of any oral comments received from the Company shall distribute SEC. The Registration Statement and the Proxy Statement shall comply as to form in all material respects with the Company’s stockholders, and, pursuant thereto, shall call rules and regulations promulgated by the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions SEC under the 1933 Act and the preparation of the Registration Statement1934 Act, respectively.
(b) No filing ofNewco, or amendment or supplement NEXTLINK and Concentric shall make all necessary filings with respect to the Proxy Statement or Mergers and the Registration Statement will be made by Parent without transactions contemplated thereby under the approval of 1933 Act and the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in 1934 Act and applicable state blue sky laws and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC rules and United States securities Laws to be included thereinregulations thereunder. Parent Each party will advise the Companyother, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Newco Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement the Mergers for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld No amendment or delayed), any response to comments of the SEC with respect supplement to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement Statement, or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance correspondence with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC with respect thereto, shall be filed without the approval of Newco, NEXTLINK and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement Concentric, which approval shall not contain any untrue statement of a material fact be unreasonably withheld or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meetingdelayed. If, If at any time prior to the Effective Time, any event or circumstance information relating to Parent Newco, NEXTLINK or Merger SubConcentric, or any of their respective Affiliates, officers or directors, should be discovered by Parent which NEXTLINK or Concentric that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent so that such information is determined to have become false or misleading in documents would not include any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement misstatement of a material fact or fail 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, at (i) the time party which discovers such information shall promptly notify the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any other parties hereto and an appropriate amendment thereof or supplement thereto) is first mailed describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of Parent NEXTLINK and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange ActConcentric.
Appears in 1 contract
Proxy Statement; Registration Statement. (a) As soon as reasonably practicable following the date of this Agreement, Parent and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (ii) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effectiveexecution of this Agreement, Company shall make a good faith determination in consultation with Purchaser whether stockholder approval is required for (i) Parent the issuance of the First Closing Date Shares and the First Closing Date Notes (and the shares of Class A Common Stock issuable upon conversion of such notes), or (ii) solely for the issuance of the Second Closing Date Shares and the Second Closing Date Notes (and the shares of Class A Common Stock issuable upon conversion of such notes). If the Company concludes based on the advice of outside counsel, after consultation with counsel to Purchaser, that approval is required for the issuance of the First Closing Date Shares and the First Closing Date Notes (and the shares of Class A Common Stock issuable upon conversion of such notes) because of the issuance of the Second Closing Date Shares and the Second Closing Date Notes, and the Second Closing Date Shares and the Second Closing Date Notes (and the shares of Class A Common Stock issuable upon conversion of such notes), Company and Purchaser shall distribute use their reasonable best efforts to consummate the First Closing as promptly as practicable, but shall not be obligated in its sole discretion to consummate, and the Agreement shall be modified inter alia to delete all references to, the Second Closing, or the Second Closing Date, and references to the Second Closing Date Shares and the Second Closing Date Notes. In the event the Company determines that the Requisite Company Vote is only required for the issuance of the Second Closing Date Shares and Second Closing Date Notes (and the shares of Class A Common Stock issuable upon conversion of such notes) the Company shall prepare and file with the SEC in connection with its next succeeding Annual Meeting of Stockholders (or next special meeting if prior to such Annual Meeting) a proxy statement of the Company relating to the meeting of the Company's stockholders (the "Company Stockholders Meeting") to be held to consider approval of the issuance of the issuance of the Second Closing Date Shares and Second Closing Date Notes (and the shares of Class A Common Stock issuable upon conversion of such notes) (the "Proxy Statement"). The Company shall use its reasonable best efforts to cause the Proxy Statement to its stockholders, and, pursuant thereto, shall call become cleared as promptly as practicable by the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware LawSEC. The Company shall promptly use its reasonable commercial efforts to file the Proxy Statement no later than April 20, 2000, and to hold the Company Stockholders Meeting no later than May 31, 2000. The Purchaser or the Company, as the case may be, shall furnish all information concerning it the Purchaser or the Company as the other party may reasonably be requested by Parent request in connection with such actions and the preparation of the Registration Proxy Statement.
(b) No filing of, or amendment or supplement to . As promptly as practicable after the Proxy Statement or is cleared by the Registration SEC, the Proxy Statement will be made by Parent without the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company. The Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or shall cause the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and (i) the Exchange Act, including Sections 14(a) and 14(d) thereof and the respective regulations promulgated thereunder and (ii) the rules and regulations of NASDAQ's National Market ("NASDAQ/NMS").
(db) The Company will, through its Board of Directors, unanimously recommend, and the Proxy Statement shall include the unanimous and unconditional recommendation of the Board of Directors of the Company, to the stockholders of the Company that they vote, as required by NASDAQ/NMS, in favor of the issuance of the Second Closing Date Shares and the Second Closing Date Notes (and the shares of Class A Common Stock issuable upon conversion of such notes).
(c) The Company shall call and hold the Company Stockholders Meeting as promptly as practicable after the mailing date of the Proxy Statement for the purpose of voting upon the issuance of the Second Closing Date Shares and Second Closing Date Notes (and the shares of Class A Common Stock issuable upon conversion of such notes). The Company shall use its reasonable best efforts (through its agents or otherwise) to ensure that solicit from its stockholders proxies in favor of the information supplied by issuance of the Company for inclusion in the Registration Statement Second Closing Date Shares and Second Closing Date Notes (and the Proxy Statement shares of Class A Common Stock issuable upon conversion of such notes), and shall not contain any untrue statement of a material fact or fail take all other action necessary to state any material fact required to be stated therein or necessary in order to make secure the statements therein, in light of the circumstances under which they were made, not misleading, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Requisite Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange ActVote.
Appears in 1 contract
Sources: Securities Purchase Agreement (Metromedia Fiber Network Inc)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the Required Financials, Parent BAC and the Company shall use commercially reasonable efforts prepare and BAC shall file with the SEC a proxy statement (as amended or supplemented, the “Proxy Statement”) to jointly be sent to the stockholders of BAC and, as an information statement, to the stockholders of the Company relating to (A) with respect to the Company’s stockholders, the action to be taken by certain stockholders of the Company pursuant to the Written Consent, and (B) with respect to the special meeting of BAC’s stockholders (the “BAC Stockholders’ Meeting”) to be held to consider the approval and adoption of (i) this Agreement and the Transactions as a business combination, (ii) the adoption and approval of the Merger, (iii) the adoption and approval of any other proposals as the SEC (or staff member thereof), NYSE or NYSE American may indicate are necessary in its comments to the Proxy Statement, the Registration Statement or correspondence related thereto, (iv) any other proposals as reasonably agreed by BAC and the Company to be necessary or appropriate in connection with the Transactions, and (v) the adjournment of the BAC Stockholders Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (such proposals in (i) through (v), together, the “BAC Proposals”). Except as otherwise mutually agreed between BAC and the Company, the BAC Proposals shall be the only matters which BAC shall propose to be acted on by the BAC stockholders at the BAC Stockholders’ Meeting.
(b) As promptly as practicable after the execution of this Agreement and receipt of the Required Financials, BAC and the Company shall prepare and BAC shall file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent New BAC Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”i) to be sent issued to the stockholders of Parent and of the Company. Pursuant Company pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) held by the stockholders of BAC immediately prior to the Effective Time. The Company shall furnish all information concerning the Company shall solicit proxies from as BAC may reasonably request in connection with such actions and the Company’s stockholders to vote at the special meeting preparation of the Company’s stockholders called for Proxy Statement and Registration Statement, including updates to the purpose Required Financials as required prior to the effective date of voting on the following matters (Registration Statement to address subsequent interim periods and to ensure compliance with PCAOB requirements, as the “case may be. BAC and the Company Stockholders’ Meeting”) in favor of each shall use their reasonable best efforts to (A) cause the adoption Proxy Statement and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (iiB) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (iC) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after filing with the SEC and (iiD) keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, BAC shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of New BAC Common Stock, in each case to be issued or issuable to the stockholders of the Company in connection with this Agreement. As promptly as practicable after finalization of the Registration Statement becomes effectiveProxy Statement, (i) Parent each of the Company and BAC shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law . Each of BAC and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(bc) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent BAC or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . BAC and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent New BAC Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent BAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(cd) Parent shall use its reasonable best efforts to ensure BAC represents that the information supplied by Parent BAC for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of BAC and the Company and Company, (iii) the time of each of the Parent Stockholders’ Meeting and the Company BAC Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to BAC or Merger Sub, or their respective officers or directors, should be discovered by BAC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, BAC shall promptly inform the Company. All documents that ▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(e) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent BAC and the stockholders of the Company and Company, (iii) the time of the Parent Stockholders’ Meeting and the Company BAC Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsBAC. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(f) If, in connection with the preparation and filing of the Registration Statement (including the Proxy Statement contained therein) or the SEC’s review thereof, the SEC requests or requires that a Tax opinion with respect to the U.S. federal income tax consequences of the Transactions be prepared and submitted, the parties shall deliver to counsel customary Tax representation letters satisfactory to such counsel, dated and executed as of the date such relevant filing shall have been declared effective by the SEC and such other date(s) as determined to be reasonably necessary by such counsel in connection with the preparation and filing of such Tax opinion. Notwithstanding anything to the contrary in this Agreement, none of BAC, the Company or their respective Tax advisors are obligated to provide any opinion that the Transactions contemplated by this Agreement qualify for the Intended Tax Treatment, other than a customary opinion regarding the material accuracy of any disclosure regarding U.S. federal income tax considerations of the Transactions included in the Registration Statement (including the Proxy Statement contained therein) as may be required to satisfy applicable rules and regulations promulgated by the SEC, nor will a Tax opinion by any party’s advisors be a condition precedent to the Transactions.
Appears in 1 contract
Sources: Business Combination Agreement (Berenson Acquisition Corp. I)
Proxy Statement; Registration Statement. (a) As soon as reasonably practicable following the date of this Agreement, (i) Parent and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent and file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy statement/prospectus statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, in which (iI) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, (B) the approval and adoption of the restated Parent Certificate of Incorporation to read as set forth on Exhibit D, (C) the approval and adoption of an equity incentive plan, in form and substance reasonably acceptable to Parent and the Company that provides for grant of awards to employees and other service providers of the Surviving Corporation in the form of options, restricted stock, restricted stock units or other equity-based awards based on Parent Common Stock with a total pool of awards of Parent Common Stock not exceeding, together with the number of shares of Parent Common Stock that would be issuable immediately after the Effective Time upon the vesting of all Converted Options, the greater of (x) 10% of the sum of (1) shares of Parent Common Stock outstanding at the Closing and (B2) the number of shares of Parent Preferred Stock outstanding at the Closing or (y) 980,000 (the “Parent Equity Incentive Plan”), (D) the approval and adoption of an amendment to the Parent Certificate of Incorporation to effectuate the Parent Common Conversion, in form and substance reasonably acceptable to Parent and the Company and (F) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (iiII) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State state of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company, and (ii) Parent and the Company shall use commercially reasonable efforts to jointly prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”), which Registration Statement shall include the Proxy Statement in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued to the stockholders and optionholders of the Company pursuant to this Agreement. Parent and the Company shall use commercially reasonable efforts to (i) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Delaware Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Nevada Law. The Each of Parent and the Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent and the Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders stockholders and optionholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure represents that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇P▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
Appears in 1 contract
Sources: Merger Agreement (FG Merger Corp.)
Proxy Statement; Registration Statement. (a) As soon The Company shall promptly provide to Buyer such information concerning the Company as is either required by the SEC and federal securities Laws, or reasonably requested by Buyer for inclusion in the Proxy Statement and Registration Statement (each as hereinafter defined), and as promptly as reasonably practicable after the execution of this Agreement and receipt by Buyer from the Company of (i) all such information relating to the Company and (ii) the Initial Financial Information (as described below), the Buyer (with the assistance and cooperation of the Company as reasonably requested by the Buyer) shall prepare and file with the SEC a joint information statement/proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of the Buyer and to the Sellers: (A) as an information statement relating, with respect to the Company’s members, to the action to be taken by members of the Company pursuant to the Written Consent or by vote at a meeting of the members of the Company and (B) as a proxy statement, with respect to the Buyer’s stockholders, in which the Buyer shall solicit proxies from the Buyer’s stockholders to vote at the special meeting of the Buyer’s stockholders called for the purpose of voting on the following matters (the date “Buyer Stockholders’ Meeting”) in favor of: (1) the approval and adoption of this Agreement, Parent the Transactions and the Merger, (2) the issuance of the Buyer Common Stock as contemplated by this Agreement and the Subscription Agreements, (3) the approval of the Buyer Certificate of Incorporation and each change to the Buyer Certificate of Incorporation that is required to be separately approved, (4) the approval and adoption of an equity incentive plan, in form and substance reasonably acceptable to the Buyer and the Company that provides for grant of awards to employees and other service providers of OpCo and its Subsidiaries in the form of options, restricted shares, restricted share units and/or other equity-based awards based on the Buyer Common Stock with a total pool of awards of the Buyer Common Stock not exceeding the New Incentive Plan Size (the “New Incentive Plan”), (5) the adjournment of the Buyer Stockholder’s Meeting to a later date or dates if it is determined by the Buyer and the Company that additional time is necessary to consummate the transactions contemplated hereby for any reason, and (6) any approval of other proposals the Parties deem necessary to effectuate the Merger and the other Transactions (collectively, the “Buyer Proposals”), and (ii) the Buyer shall use commercially reasonable efforts to jointly prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent the Buyer Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent issued to the stockholders of Parent and the Company pursuant to this Agreement. Each of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent Buyer and the Company shall use commercially their reasonable best efforts to (iw) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (iix) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or the Registration Statement. Parent shall use commercially reasonable efforts to , (iy) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiz) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent the Buyer shall distribute mail the Proxy Statement to its stockholders, and, pursuant thereto, shall call . Each of the Parent Stockholders’ Meeting in accordance with Nevada Law Buyer and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other Party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) The Company will, in addition to providing the Financial Statements, provide Buyer as promptly as practicable after the Effective Time (and in any event on or prior to the tenth (10th) Business Day following the date of this Agreement) in accordance with Section 8.14: (i) the related pro forma adjustments necessary to prepare the pro forma financial statements in compliance with the requirements of Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC) (such pro forma financial adjustments together with the Financial Statements, the “Required Financials”) and cooperate as reasonably requested by the Buyer in the preparation thereof, (ii) all selected financial data of the Company, as necessary for inclusion in the Proxy Statement and Registration Statement; and (iii) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the Securities Exchange Act (as if the Company was subject thereto) with respect to the periods covered in the Required Financials, as necessary for inclusion in the Proxy Statement and Registration Statement (together with the Required Financials, the “Initial Financial Information”). Subsequent to the delivery of the Required Financials, until the Registration Statement is declared effective, the Company’s consolidated interim financial information for each quarterly period thereafter will be delivered to Buyer no later than forty (40) calendar days following the end of each quarterly period, together with related pro forma adjustments that comply with the requirements of Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC). All of the financial statements to be delivered pursuant to this Agreement by the Company will be prepared in accordance with U.S. GAAP.
(c) The Company and its counsel shall be given a reasonable opportunity to review and comment on in writing the Proxy Statement prior to its filing with the SEC and any other amendments or documents filed with the SEC. No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent the Buyer or the Company without the approval of the Company other Party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (bc), Parent the Buyer will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to ParentBuyer, is required by the SEC and United States securities Laws to be included therein. Parent The Buyer shall promptly transmit any such amendment or supplement to the Buyer’s stockholders, if at any time prior to the Buyer Stockholders’ Meeting there shall be discovered any information that should be set forth in an amendment or supplement to the Proxy Statement. The Buyer and the Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Buyer Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent the Buyer and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (bc), Parent the Buyer will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to ParentBuyer, is required by the SEC and United States securities Laws to be included therein.
(cd) Parent shall use its reasonable best efforts to ensure The Buyer represents that the information supplied by Parent the Buyer for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Buyer, (iii) the time of each of the Parent Stockholders’ Meeting and the Company Buyer Stockholders’ Meeting, and (iv) the Effective Time. If, at any time prior to the Effective Time, any event or circumstance relating to Parent the Buyer or Merger SubNewco, or their respective officers or directors, should be discovered by Parent the Buyer which the Buyer reasonably believes should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent the Buyer shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ the Buyer is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(de) The Each of the Company and the Buyer shall use its reasonable best efforts to ensure that the information supplied by the Company it for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and Buyer, (iii) the time of the Parent Stockholders’ Meeting and the Company Buyer Stockholders’ Meeting, and (iv) the Effective Time. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyBuyer, the Company or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that Buyer or the Company, as applicable, which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company Buyer or the Company, as applicable, shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsParty. All documents that the Company Buyer, on the one hand, and the Company, on the other hand, is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
Appears in 1 contract
Sources: Business Combination Agreement (Aldel Financial Inc.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the PCAOB Audited Financials, Parent SPAC and the Company shall use commercially reasonable efforts prepare and file with the SEC a proxy statement (as amended or supplemented, the “Proxy Statement”) to jointly be sent to the SPAC Shareholders soliciting proxies in favor of the SPAC Proposals from such SPAC Shareholders in connection with the extraordinary general meeting of the SPAC Shareholders (the “SPAC Shareholders’ Meeting”) in accordance with the Governing Documents of SPAC, to be held to consider approval and adoption by SPAC Shareholders of (i) this Agreement, the Ancillary Agreements and the Transactions, including the Company Amalgamation and the New SPAC Amalgamation, (ii) the Continuance, (iii) the issuance of New SPAC Shares in connection with the Transactions as required by Nasdaq listing requirements, (iv) the New SPAC Equity Plan, (v) any other proposals the Parties deem necessary or desirable to effectuate the Transactions (the proposals in clauses (i) through (v), collectively, the “SPAC Proposals”). If applicable, SPAC and the Company shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent with the SEC, pursuant to in which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration Proxy Statement shall be registered under the Securities Act, which Registration Statement included as a prospectus. The Company shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals furnish all information concerning the Company and Parent shall hereafter mutually determine to be necessary or appropriate the Company Subsidiaries as SPAC may reasonably request in order to effect the Merger connection with such actions and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting preparation of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement Proxy Statement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders Registration Statement. Each of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent SPAC and the Company shall use their commercially reasonable efforts to (iA) cause the Proxy Statement and the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (iiB) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (iC) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after filing with the SEC and (iiD) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the effective time of the Registration Statement becomes effectiveStatement, (i) Parent SPAC shall distribute the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute mail the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call SPAC Shareholders. Each of SPAC and the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other Party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement. If, in connection with the preparation and filing of the Proxy Statement and the Registration Statement, the SEC requires that a tax opinion with respect to the Transactions be prepared and submitted in connection with such, (x) SPAC and the Company shall deliver to their respective tax counsel customary Tax representation letters satisfactory, dated and executed as of the date the Proxy Statement and the Registration Statement shall have been declared effective by the SEC and such other date(s) as determined reasonably necessary by such tax counsel in connection with the preparation and filing of the Proxy Statement and Registration Statement and (y) the Company and SPAC shall cause their respective tax counsel to render a Tax Opinion. SPAC also agrees to use its commercially reasonable efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated hereby, if any.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will shall be made by Parent SPAC or the Company without the approval of the Company other Party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is except as required by applicable Law. Each of SPAC and the SEC and United States securities Laws to be included therein. Parent will Company shall advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdictionSPAC Shares, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent SPAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent To the extent not prohibited by Law, SPAC will advise the Company, reasonably promptly after SPAC receives notice thereof, of the time when the Proxy Statement/Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of the SPAC securities for offering or sale in any jurisdiction, of the initiation or written threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Proxy Statement/Registration Statement or for additional information. To the extent not prohibited by Law, the Company and their counsel shall use its be given a reasonable best efforts opportunity to ensure that review and comment on the information supplied by Parent for inclusion in the Proxy Statement/Registration Statement and any other offering document each time before any such document is filed with the SEC, and SPAC shall give reasonable and good faith consideration to any comments made by the Company and its counsel. To the extent not prohibited by Law, SPAC shall provide the Company and their counsel with (A) any comments or other communications, whether written or oral, that SPAC or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement/Registration Statement or other offering documents promptly after receipt of those comments or other communications and (B) a reasonable opportunity to participate in the response of SPAC to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with the Company or its counsel in any discussions or meetings with the SEC. If at any time prior to the Company Amalgamation Effective Time any information relating to the Company, SPAC or any of their respective Subsidiaries, Affiliates, directors or officers is discovered by the Company or SPAC, which is required to be set forth in an amendment or supplement to the Proxy Statement shall not contain or the Registration Statement, so that neither of such documents would include any untrue statement misstatement of a material fact or fail omit to state any material fact required to be stated therein or necessary in order to make the statements therein, with respect to the Proxy Statement, in light of the circumstances under which they were made, not misleading misleading, the party which discovers such information shall promptly notify the other parties and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the SPAC Shareholders.
(d) SPAC represents and warrants that the information supplied by SPAC for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent the SPAC Shareholders and the stockholders each of the Company and Shareholders, (iii) the time of each of the Parent StockholdersSPAC Shareholders’ Meeting and (iv) the Company Stockholders’ Meeting. If, at any time prior to the Amalgamation Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Company Amalgamation Effective Time, any event or circumstance relating to SPAC, Newco or their respective officers or directors, should be discovered by SPAC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, SPAC shall promptly inform the Company. All documents that SPAC or New SPAC (as the case may be) is responsible for filing with the SEC in connection with the Company Amalgamation, or the other Transactions shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(e) The Company represents and warrants that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and SPAC Shareholders, (iii) the time of the Parent StockholdersSPAC Shareholders’ Meeting and (iv) the Company Stockholders’ MeetingAmalgamation Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Company Amalgamation Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsSPAC. All documents that the Company is responsible for filing causing SPAC to file with the SEC in connection with the Merger Company Amalgamation or the other transactions contemplated by this Agreement Transactions shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(f) The Parties shall prepare and Newco (as predecessor of New SPAC) or New SPAC, as applicable, shall file with the Ontario Securities Commission, a preliminary and final non-offering prospectus in sufficient time for New SPAC to become a reporting issuer in the Province of Ontario as promptly as reasonably practicable following (but not on or before) the Closing Date. Each Party shall use its commercially reasonable efforts to cause each of the preliminary and final non-offering prospectus to comply as to form in all material respects with applicable Canadian securities Laws. Each Party shall give the other Parties and their counsel a reasonable opportunity to review and comment on drafts of the preliminary and final non-offering prospectus prior to their respective filings and shall accept the reasonable comments made by the other Parties and their respective counsel for inclusion in the preliminary and final non-offering prospectus and/or any amendment or supplement thereto.
Appears in 1 contract
Sources: Business Combination Agreement (Oxus Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following the date of this Agreement, Parent (i) the parties shall jointly prepare, and Arena shall cause to be filed with the Company shall use commercially reasonable efforts SEC, a proxy statement relating to jointly prepare a registration statement on Form S-4 the Arena Stockholder Meeting (together with all amendments and supplements thereto, the “Proxy Statement/Prospectus”) in preliminary form and (ii) the parties shall jointly prepare, and Arena shall cause to be filed with the SEC, a Registration Statement on Form S-4, which shall include the Proxy Statement/Prospectus (together with all amendments and supplements thereto, the “Registration Statement”) relating to be filed by Parent with the SEC, pursuant to which the offer and sale/issuance registration of the shares of Parent Newco Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent issued in connection with the Mergers. Arena agrees, as to the stockholders of Parent itself and of the Company. Pursuant to its Subsidiaries, that the Proxy Statement, (i) Parent /Prospectus shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with the applicable provisions of the 1934 Act and other Applicable Law. Each party agrees, as to itself and its Subsidiaries, that the Registration Statement shall comply in all legal requirements material respects with the applicable theretoprovisions of the 1933 Act and other Applicable Law.
(b) Each of the parties shall use its reasonable best efforts to (i) have, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from following the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause filing thereof, the Registration Statement to be declared effective under the Securities Act as promptly as practicable and 1933 Act, (ii) keep the Registration Statement effective as long as is necessary to consummate the TransactionsMergers and (iii) respond as promptly as reasonably practicable to any comments or requests for additional information from the SEC with respect to the Proxy Statement/Prospectus or the Registration Statement, as applicable. As Simplify and Bridge Media, on the one hand, and Arena, on the other hand, shall, as promptly as practicable after the receipt thereof, provide the other parties with copies of any written comments, and advise the other party of any oral comments, with respect to the Proxy Statement/Prospectus and the Registration Statement becomes effectivereceived by such party from the SEC, (i) Parent shall distribute including any request from the SEC for amendments or supplements to the Proxy Statement Statement/Prospectus and the Registration Statement, and shall provide the other with copies of all material or substantive written correspondence (including all responses to SEC comments) and a summary of all oral communications between it and its stockholdersRepresentatives, andon the one hand, pursuant theretoand the SEC, on the other hand. Each of Simplify and Arena shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it or its Affiliates as may be reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and Proxy Statement.
/Prospectus. Notwithstanding the foregoing, prior to filing the Registration Statement (bor any amendment or supplement thereto) or mailing the Proxy Statement/Prospectus (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each of the parties shall provide the other parties and its counsel a reasonable opportunity to review such document or response (including the proposed final version of such document or response) and consider in good faith the comments of the other party in connection with any such document or response. No filing of, or amendment or supplement to to, the Proxy Statement Statement/Prospectus or the Registration Statement will be made by Parent Bridge Media or Arena without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided. None of Simplify, howeverBridge Media or their respective Representatives shall agree to participate in any material or substantive meeting or conference (including by telephone) with the SEC, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis any member of the Company’s failure staff thereof, in respect of the Registration Statement or the Proxy Statement/Prospectus unless it consults with the Arena in advance and, to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required extent permitted by the SEC SEC, allows Arena to participate. Neither Arena nor its Representatives shall agree to participate in any material or substantive meeting or conference (including by telephone) with the SEC, or any member of the staff thereof, in respect of the Registration Statement or the Proxy Statement/Prospectus unless it consults with Simplify in advance and, to the extent permitted by the SEC, allows Simplify to participate. Subject to Section 6.03, the Proxy Statement/Prospectus shall include the Arena Board Recommendation.
(c) The parties shall make all necessary filings with respect to the Transactions under the 1933 Act and United States securities Laws to be included thereinthe 1934 Act and applicable state “blue sky” laws and the rules and regulations thereunder. Parent Each of the parties will advise the Companyother parties, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Newco Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement the Mergers for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement Statement/Prospectus or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior during the Pre-Closing Period, any information relating to the Effective Time, any event or circumstance relating to Parent or Merger Subparties, or any of their respective Affiliates, officers or directors, directors should be discovered by Parent which a party that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent /Prospectus so that such information is determined to have become false or misleading in documents would not include any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement misstatement of a material fact or fail 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, at (i) the time party that discovers such information shall promptly notify the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any other parties and an appropriate amendment thereof or supplement thereto) is first mailed describing such information shall be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange ActArena.
Appears in 1 contract
Sources: Business Combination Agreement (Arena Group Holdings, Inc.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement, Parent (i) the SPAC (with the assistance and cooperation of the Company as reasonably requested by the SPAC, including delivery of the PCAOB Financial Statements in accordance with Section 7.12) shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent and file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent the SPAC and from which the Company may derive an information statement that it can send to the shareholders of the Company. Pursuant Company relating to (A) with respect to the Proxy StatementCompany’s shareholders, the action to be taken by certain shareholders of the Company pursuant to the Company Shareholder Vote, and (iB) Parent shall solicit proxies from Parentwith respect to the SPAC’s stockholders, the meeting of the SPAC’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent SPAC Stockholders’ Meeting”) in favor to be held to (I) provide the stockholders of the SPAC with the opportunity to redeem their shares of SPAC Class A Common Stock by tendering such shares for redemption not later than 5:00 p.m. Eastern Time on the date that is two (A2) Business Days prior to the date of the SPAC Stockholders’ Meeting (the “SPAC Stockholder Redemption”), (II) provide for the SPAC Exchange Offer and (III) consider approval and adoption of (1) this Agreement and the Ancillary Agreements Merger, (2) the issuance of the SPAC Class A Common Stock and SPAC Series A Preferred Stock as contemplated by this Agreement, (3) the equity incentive plan (the “SPAC Equity Incentive Plan”) substantially in the form attached hereto as Exhibit D, with any changes thereto as the Company and the transactions SPAC may mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed by either party), (4) an employee stock purchase plan (the “SPAC ESPP”) substantially in the form attached hereto as Exhibit E, with any changes thereto as the Company and the SPAC may mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed by either party), (5) the Amended and Restated SPAC Certificate of Incorporation and Certificate of Designation, (6) the election of directors as contemplated hereby or thereby, including the Mergerby Section 7.14, and (B7) any approval of other proposals the Company and Parent shall hereafter mutually determine to be parties deem necessary or appropriate in order to effect effectuate the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent SPAC Proposals”) ), and (ii) the Company SPAC shall solicit proxies from prepare and file with the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting SEC a registration statement on the following matters Form S-4 (together with all amendments thereto, the “Company Stockholders’ MeetingRegistration Statement”) in favor which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of (AI) the adoption and approval issuance of the shares of SPAC Class A Common Stock to be issued to the shareholders of the Company pursuant to this Agreement and (II) the Ancillary Agreements SPAC Exchange Offer. The Company shall furnish all information concerning the Company as the SPAC may reasonably request in connection with such actions and the transactions contemplated hereby or thereby, including the Merger, by the holders preparation of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware Proxy Statement and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyRegistration Statement. Parent The SPAC and the Company each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements Laws applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable reasonably practicable, and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as reasonably practicable after the Registration Statement becomes is declared effective, (i) Parent each of the Company and the SPAC shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call . Each of the Parent Stockholders’ Meeting in accordance with Nevada Law SPAC and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement Statement, will be made by Parent the SPAC or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned conditioned, or delayeddelayed by either party); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . The SPAC and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent SPAC Class A Common Stock to be issued or issuable to the holders shareholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent the SPAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld withheld, conditioned or delayeddelayed by either party), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment or supplement to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure The SPAC represents that the information supplied by Parent the SPAC for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and SPAC, (iii) the time of each of the Parent Stockholders’ Meeting and the Company SPAC Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the SPAC or Merger Sub, or their respective officers or directors, should be discovered by the SPAC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the SPAC shall promptly inform the Company. All documents that the SPAC is responsible for filing with the SEC in connection with the Merger or the other Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement or any current report on Form 8-K shall not, at (i) the time the Registration Statement is declared effectiveeffective (in the case of the Registration Statement) or at the time filed (in the case of a current report on Form 8-K), (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders SPAC (in the case of the Company and Proxy Statement), (iii) the time of the Parent SPAC Stockholders’ Meeting (in the case of the Registration Statement or the Proxy Statement), and (iv) the Company Stockholders’ MeetingEffective Time (in the case of the Registration Statement), contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsSPAC. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(e) Without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), the SPAC Proposals shall be the only matters (other than procedural matters) which the SPAC shall propose to be acted on by SPAC stockholders at the SPAC Stockholders’ Meeting.
Appears in 1 contract
Sources: Business Combination Agreement (Anzu Special Acquisition Corp I)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement and receipt of the PCAOB Financial Statements and the Non-PCAOB Financial Statements and appropriate financial statements of Cloudbreak Health for filing with the SEC, (i) GigCapital2 (with the assistance and cooperation of the Company and Cloudbreak) shall prepare and file with the SEC a joint information statement/proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of GigCapital2 and to the stockholders of the Company as an information statement relating to (A) with respect to the Company’s stockholders, the action to be taken by certain stockholders of the Company pursuant to the Written Consent and (B) with respect to GigCapital2’s stockholders, the meeting of GigCapital2’s stockholders (the “GigCapital2 Stockholders’ Meeting”) to be held to consider approval and adoption of (1) this Agreement and the Merger, (2) the issuance of GigCapital2 Common Stock as contemplated by this Agreement, Parent (3) the UpHealth Certificate of Incorporation as set forth on Exhibit B, (4) the transactions contemplated under the Cloudbreak Health BCA and the Company issuance of GigCapital2 Common Stock as contemplated thereunder, (5) the Equity Plan, (6) the classes of the members of the UpHealth Board as of immediately following the Effective Time, (7) the election of the Initial Post-Closing UpHealth Directors to serve as the members of the UpHealth Board as of immediately following the Effective Time and until their respective successors are duly elected or appointed and qualified and (8) any other proposals the parties deem necessary to effectuate the Merger (collectively, the “GigCapital2 Proposals”) and (ii) GigCapital2 shall use commercially reasonable efforts to jointly prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent GigCapital2 Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”A) to be sent issued to the stockholders of Parent and of the Company. Pursuant Company pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval to be issued to the members of other proposals Cloudbreak Health pursuant to the Cloudbreak Health BCA. The Company shall furnish all information concerning the Company and Parent shall hereafter mutually determine to be necessary or appropriate as GigCapital2 may reasonably request in order to effect the Merger connection with such actions and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting preparation of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption Proxy Statement and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyRegistration Statement. Parent GigCapital2 and the Company each shall use commercially their reasonable best efforts to (iI) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (iiII) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (iIII) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiIV) to keep the Registration Statement effective as long as is necessary to consummate the Transactionstransactions contemplated hereby. Prior to the effective date of the Registration Statement, GigCapital2 shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of GigCapital2 Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after the Registration Statement becomes is declared effective, (i) Parent each of the Company and GigCapital2 shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law . Each of GigCapital2 and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent GigCapital2 or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . GigCapital2 and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent GigCapital2 Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent GigCapital2 and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure GigCapital2 represents that the information supplied by Parent GigCapital2 for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and GigCapital2, (iii) the time of each of the Parent Stockholders’ Meeting and the Company GigCapital2 Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to GigCapital2 or Merger Sub, or their respective officers or directors, should be discovered by GigCapital2 which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, GigCapital2 shall promptly inform the Company. All documents that GigCapital2 is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and GigCapital2, (iii) the time of the Parent Stockholders’ Meeting and the Company GigCapital2 Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsGigCapital2. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the PCAOB Audited Financials, Parent (i) Kensington shall prepare and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy statement/prospectus statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant Kensington relating to the Proxy Statement, (i) Parent shall solicit proxies from Parentmeeting of Kensington’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Kensington Stockholders’ Meeting”) in favor of (A) the to be held to consider approval and adoption of (1) this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, (2) the issuance of the New Kensington Common Stock as contemplated by this Agreement, (3) the amendment to the Kensington Organizational Documents and (B4) any approval of other proposals the Company and Parent shall hereafter mutually determine parties deem necessary to be necessary or appropriate in order to effect effectuate the Exchanges, the Merger and the other transactions contemplated by this Agreement Transactions (collectively, the “Parent Kensington Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or therebyHoldco, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent Kensington shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger prepare and Holdco shall file (and the Company and Kensington shall cause Holdco to file) with the SEC a registration statement on Form F-4 or such other transactions contemplated by this Agreement applicable form as Kensington shall decide (the approvals described in foregoing clauses (A) through (B), collectivelyas amended or supplemented from time to time, the “Company Stockholder Approval MattersRegistration Statement”), and (C) in which the adjournment Proxy Statement will be included, in connection with the registration under the Securities Act of the Company Stockholders’ Meeting, if necessary or desirable Holdco Ordinary A Shares and Holdco Warrants to be issued in the reasonable determination Merger. The Company and Holdco shall furnish all information concerning the Company and Holdco, respectively, as Kensington, and, with respect to the Company, Holdco, may reasonably request in connection with such actions and the preparation of the CompanyProxy Statement and Registration Statement. Parent and the Company The parties hereto each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements Laws applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, the parties hereto shall take, or cause to be taken, all or any action required under any applicable federal or state securities Laws in connection with the issuance of Holdco Ordinary A Shares, in each case to be issued or issuable to the stockholders of Kensington pursuant to this Agreement. As promptly as practicable after finalization of the Registration Statement becomes effectiveProxy Statement, (i) Parent Kensington shall distribute mail the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) . Each of the Company and Holdco shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent Kensington and, with respect to the Company, Holdco, in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent Kensington or Holdco without the approval of the Company other parties hereto (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Each party hereto will advise the Companyothers, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock Holdco Ordinary A Shares to be issued or issuable to the holders stockholders of Company Securities Kensington in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional informationinformation and responses thereto. Each of Parent and the Company parties hereto shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure Kensington represents that the information supplied by Parent Kensington for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Kensington, (iii) the time of each of the Parent Stockholders’ Meeting and the Company Kensington Stockholders’ Meeting. If, at any time prior to and (iv) the Merger Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Merger Effective Time, any event or circumstance relating Table of Contents to Kensington or its officers or directors, should be discovered by Kensington which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Kensington shall promptly inform the Company. All documents that Kensington is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement or any current report on Form 8-K shall not, at (i) the time the Registration Statement is declared effectiveeffective (in the case of the Registration Statement or the Proxy Statement) or at the time filed (in the case of a current report on Form 8-K), (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and Kensington (in the stockholders case of the Company and Registration Statement or the Proxy Statement), (iii) the time of the Parent Kensington Stockholders’ Meeting (in the case of the Registration Statement or the Proxy Statement), and (iv) the Company Stockholders’ MeetingMerger Effective Time (in the case of the Registration Statement or the Proxy Statement), contain any untrue statement of a material fact or fail 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. If, at any time prior to the Merger Effective Time, any event or circumstance relating to the Company, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsKensington. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(e) Holdco represents that the information supplied by Holdco for inclusion in the Registration Statement and the Proxy Statement or any current report on Form 8-K shall not, at (i) the time the Registration Statement is declared effective (in the case of the Registration Statement or the Proxy Statement) or at the time filed (in the case of a current report on Form 8-K), (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Kensington (in the case of the Registration Statement or the Proxy Statement), (iii) the time of the Kensington Stockholders’ Meeting (in the case of the Registration Statement or the Proxy Statement), and (iv) the Merger Effective Time (in the case of the Registration Statement or the Proxy Statement), contain any untrue statement of a material fact or fail 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. If, at any time prior to the Merger Effective Time, any event or circumstance relating to Holdco, or its officers or directors, should be discovered by Holdco which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Holdco shall promptly inform Kensington and the Company. All documents that Holdco is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
Appears in 1 contract
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable practicable, and in any event no later than five (5) Business Days, following the date execution and delivery of this AgreementAgreement and receipt by Parent of the Required Financials, Parent and the Company and Parent shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together prepare, and Parent shall, in accordance with all amendments theretothis Section 5.10, the “Registration Statement”) to be filed by Parent file with the SEC, pursuant to which (i) in preliminary form, a proxy statement in connection with the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus transactions contemplated hereby (as amended or supplemented, the “Proxy Statement”) and provide its stockholders with the opportunity to redeem their shares of Parent Class A Common Stock in conjunction with a stockholder vote on the transactions contemplated hereby, such proxy to be sent to the stockholders of Parent relating to the Parent Stockholder Meeting in definitive form, all in accordance with and as required by Parent’s Organizational Documents, applicable Law and any applicable rules and regulations of the CompanySEC and NYSE, and (ii) a registration statement on Form S-4 (as amended or supplemented, the “Registration Statement”, and together with Proxy Statement, the “Proxy Statement / Registration Statement”), in which the Proxy Statement shall be included as a prospectus, pursuant to which the shares of Parent Class A Common Stock to be issued to the Company Stockholders pursuant to the Merger shall be registered for issuance under the Securities Act. Pursuant to Without limitation, in the Proxy Statement, Parent shall (i) Parent shall solicit proxies from Parent’s stockholders holders of Parent Class A Common Stock and Parent Class B Common Stock to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) Stockholder Meeting in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and approval of the transactions contemplated hereby or thereby, including the Merger, by the holders pursuant to Section 251 of the Capital Stock in accordance with Delaware General Corporation Law (the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq“DGCL”), (B) the amendment and restatement of the Parent Charter, substantially in the form attached hereto as Exhibit D (with such other matters changes as may be agreed in writing by Parent and the Company, and as the same may be subsequently amended by mutual written agreement of the Company and Parent shall hereafter mutually determine at any time before the effectiveness of the Proxy Statement / Registration Statement), including any separate or unbundled proposals as are required to implement the foregoing, (C) the amendment and restatement of Parent’s Bylaws, substantially in the form attached hereto as Exhibit E (with such changes as may be agreed in writing by Parent and the Company, and as the same may be subsequently amended by mutual written agreement of the Company and Parent at any time before the effectiveness of the Proxy Statement / Registration Statement), including any separate or unbundled proposals as are required to implement the foregoing, (D) the approval of the adoption by Parent of the Equity Incentive Plan described in Section 5.21 and any other equity compensation arrangement that the Company reasonably determines requires approval of the Parent Stockholders, (E) the election of directors effective as of the Closing as contemplated by Section 5.20, (F) the approval of the issuance of shares of Parent Class A Common Stock in connection with the Merger, (G) the adoption and approval of any other proposals as the SEC (or staff member thereof) may indicate are necessary in its comments to the Proxy Statement / Registration Statement or correspondence related thereto, (H) the adoption and approval of any other proposals as reasonably agreed by Parent and the Company to be necessary or appropriate in order to effect connection with the Merger and the other transactions contemplated by this Agreement hereby, and (I) the approvals described adjournment of the Parent Stockholder Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (such proposals in foregoing clauses (A) through (BH), collectivelytogether, the “Company Stockholder Approval MattersTransaction Proposals”), and (Cii) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause the Registration Statement when filed file with the SEC financial and other information about the transactions contemplated hereby in accordance with Regulation 14A of the Exchange Act. The Proxy Statement will comply as to comply in all material respects form and substance with all legal the applicable requirements applicable thereto, of the Exchange Act and the rules and regulations thereunder.
(iib) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (ii) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes shall have become effective, (i) Parent shall distribute mail the Proxy Statement to its stockholdersholders of Parent Class A Common Stock and Parent Class B Common Stock of record, and, pursuant thereto, shall call as of the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) record date to be established by the board of directors of Parent. Each of the Company and Parent shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it such Party and its Affiliates to the other Party, and provide such other assistance, as may be reasonably be requested by Parent in connection with such actions the preparation, filing and distribution of the Proxy Statement and the preparation Registration Statement, and the Proxy Statement / Registration Statement shall include all information reasonably requested by such other Party to be included therein. Each of the Company and Parent shall promptly notify the other upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement / Registration Statement and shall provide the other with copies of all correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand. Each of the Company and Parent shall use its reasonable best efforts to respond as promptly as reasonably practicable to any comments from the SEC with respect to the Proxy Statement.
(bc) No filing of, Parent shall not file with the SEC or amendment or supplement mail to Parent’s Stockholders the Proxy Statement / Registration Statement, or any amendments or responses to any comments from the Registration Statement will be made by Parent SEC with respect thereto without the approval prior written consent of the Company (such approval consent not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, Company promptly after it receives receipt of notice thereof, of (i) the time when each of the Proxy Statement / Registration Statement has become effective have been filed, (ii) receipt of oral or written notification of the completion of the review by the SEC, (iii) the filing of any supplement or amendment thereto has been filedto the Proxy Statement / Registration Statement, of or (iv) the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdiction, or of any request order by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included thereinStatement.
(cd) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, If at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should Stockholder Meeting there shall be discovered by Parent which any information that should be set forth in an amendment or a supplement to the Proxy Statement / Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent so that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall / Registration Statement, as applicable, would not contain include any untrue statement misstatement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time Parent shall promptly transmit to its stockholders an amendment or supplement to the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting/ Registration Statement containing such information. If, at any time prior to the Effective Time, the Company discovers any information, event or circumstance relating to the Company, Group Companies or any of their respective officers Affiliates, officers, directors or directors, should be discovered by the Company employees that should be set forth in an amendment or a supplement to the Proxy Statement / Registration Statement or so that the Proxy Statement / Registration Statement, as applicable, would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, then the Company shall promptly inform ParentParent of such information, event or circumstance.
(e) Parent shall make all necessary filings with respect to the transactions contemplated hereby under the Securities Act, the Exchange Act and applicable “blue sky” laws and any rules and regulations thereunder.
(f) The Company shall cause the officers and employees of the Group Companies to be reasonably available to Parent and its counsel in connection with the drafting of the Proxy Statement / Registration Statement and responding in a timely manner to comments on the Proxy Statement / Registration Statement from the SEC. The Company shall promptly correct any information provided by it for use in furnish all updates to the Required Financials as required prior to the effective date of the Registration Statement (and other related materials) if to address subsequent interim periods and to ensure compliance with PCAOB or AICPA requirements, as the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Lawscase may be. All documents that Without limiting the generality of the preceding sentence, the Company is responsible shall provide to Parent the unaudited consolidated balance sheet and related unaudited statements of operations and cash flows of the Company and its Subsidiaries for filing with each fiscal quarter of the SEC Company ended after March 31, 2024 and at least forty-five (45) days prior to the Closing Date, in each case within forty-five (45) days following the end of such fiscal quarter.
(g) Parent shall not terminate or withdraw the Offer other than in connection with the Merger valid termination of this Agreement in accordance with Article VIII. Parent shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC, NYSE or the other transactions contemplated by respective staff thereof that is applicable to the Offer. Nothing in this Section 5.10(g) shall (i) impose any obligation on Parent to extend the Offer beyond the Outside Date, or (ii) be deemed to impair, limit or otherwise restrict in any manner the right of Parent to terminate this Agreement in accordance with Article VIII.
(h) Parent shall comply as use its reasonable best efforts to form and substance in (i) satisfy all material respects with the applicable continuing listing requirements of NYSE, (ii) cause the Securities Act shares of Parent Class A Common Stock to be issued to the Company Stockholders as provided in Article II to be approved for listing on NYSE upon issuance, and (iii) make all necessary and appropriate filings with NYSE and undertake all other steps reasonably required prior to the Closing Date to effect such listing, in each case, as promptly as reasonably practicable after the date of this Agreement, and in any even prior to the Effective Time. Parent shall take all necessary action to ensure that, from and after the Closing, the shares of Parent Class A Common Stock shall trade publicly under a ticker symbol mutually acceptable to Parent and the Exchange ActCompany.
Appears in 1 contract
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement, (i) Parent (with the assistance and cooperation of the Company as reasonably requested by Parent) shall prepare and file with the SEC a joint information statement/proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the Pre-Closing Parent Holders and to the stockholders of the Company (A) as an information statement relating, with respect to the Company’s stockholders, to the action to be taken by stockholders of the Company pursuant to the Written Consent or by vote at a Company Stockholders Meeting and (B) as a proxy statement, with respect to the Pre-Closing Parent Holders, in which Parent shall solicit proxies from Pre-Closing Parent Holders to vote at the extraordinary general meeting of all holders of Parent Ordinary Shares called for the purpose of voting on the following matters (the “Parent Holders’ Meeting”) in favor of (1) the approval and adoption of this Agreement and the Transactions, including the Mergers, (2) the Domestication, (3) in connection with the Domestication, the amendment of the Parent Governing Document and approval of the Newco Certificate of Incorporation and Newco Bylaws, (4) the issuance of Newco Common Stock as contemplated by this Agreement and the Subscription Agreements, (5) the approval and adoption of an equity incentive plan, substantially in the form attached as Exhibit D hereto, that provides for the grant of awards to employees and other service providers of the Final Surviving Company and its subsidiaries in the form of options, restricted shares, restricted share units and/or other equity-based awards based on Newco Class A Common Stock with a total pool of awards of Newco Class A Common Stock not exceeding the New Incentive Plan Size (the “New Incentive Plan”), (6) the approval and adoption of an employee stock purchase plan, substantially in the form attached as Exhibit E hereto, that provides for the purchase of up to a number of shares of Newco Class A Common Stock, to be determined by the Company Board prior to the Closing, by employees of the Final Surviving Company and its subsidiaries and an annual “evergreen” increase, to be determined by the Company Board prior to the Closing, of no less than a one percent (1%) of the shares of Newco Common Stock outstanding as of the day prior to such increase (the “New Stock Purchase Plan”), (7) the election of the directors constituting the Newco Board, (8) the adjournment of the Parent Holders’ Meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the Transactions for any reason, (9) the adoption and approval of any other proposals as the SEC (or staff member thereof) may indicate are necessary in its comments to the Proxy Statement, the Registration Statement or correspondence related thereto, and (10) the adoption and approval of any other proposals as reasonably agreed by Parent and the Company to be necessary or appropriate in connection with the Mergers and the other Transactions (collectively, the “Parent Proposals”), and (ii) Parent shall use commercially reasonable efforts to jointly prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent Newco Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent issued to the stockholders of Parent and of the Company. Pursuant Company pursuant to the Proxy Statementthis Agreement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called including, for the purpose avoidance of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor doubt, any shares of (A) the approval and adoption Newco Class B Common Stock to be issued pursuant to Section 3.06 of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyAgreement. Parent and the Company each shall use commercially their reasonable best efforts to (iw) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (iix) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or the Registration Statement. Parent shall use commercially reasonable efforts to , (iy) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiz) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) each of the Company and Parent shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call . Each of Parent and the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Ordinary Shares or the Newco Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of the Pre-Closing Parent and the stockholders of the Company and Holders, (iii) the time of each of the Parent Stockholders’ Meeting and the Company StockholdersHolders’ Meeting, and (iv) the Initial Effective Time. If, at any time prior to the Initial Effective Time, any event or circumstance relating to Parent or either Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ Parent is responsible for filing with the SEC in connection with the Merger Mergers or the other transactions contemplated by this Agreement Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Pre-Closing Parent and the stockholders of the Company and Holders, (iii) the time of the Parent Stockholders’ Meeting and the Company StockholdersHolders’ Meeting, and (iv) the Initial Effective Time. If, at any time prior to the Initial Effective Time, any event or circumstance relating to the Company, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger Mergers or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Virgin Group Acquisition Corp. II)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the PCAOB Audited Financials, Parent (i) Live Oak and the Company shall use commercially reasonable efforts prepare and file with the SEC a proxy statement (as amended or supplemented, the “Proxy Statement”) to jointly be sent to the Live Oak Stockholders relating to the meeting of the Live Oak Stockholders (the “Live Oak Stockholders’ Meeting”) to be held to consider approval and adoption of (1) this Agreement and the Merger, (2) the issuance of shares of Live Oak Class A Common Stock as contemplated by this Agreement (including the Earn-Out Shares) and the PIPE, (3) an employee stock purchase plan for Live Oak having the principal terms described on Schedule 6.15(a), (4) the New Equity Incentive Plan, (5) the following amendments to Live Oak’s Certificate of Incorporation: (A) increasing the authorized shares of Live Oak Class A Common Stock to 200,000,000 shares, (B) deleting the classified Live Oak Board structure, and (C) deleting the provisions of Section 5.4, Article VII, Article IX and Article X of the Live Oak Certificate of Incorporation and (6) any other proposals the Parties deem necessary to effectuate the Merger and the transactions contemplated hereby (collectively, the “Live Oak Proposals”) and (ii) Live Oak shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent Live Oak Class A Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”A) to be sent issued to the stockholders of Parent and of the Company. Pursuant Shareholders pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, (including the Merger, Earn-Out Shares) and (B) any approval of other proposals held by the Live Oak Stockholders immediately prior to the Effective Time. The Company shall furnish all information concerning the Company and Parent shall hereafter mutually determine to be necessary or appropriate as Live Oak may reasonably request in order to effect the Merger connection with such actions and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting preparation of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption Proxy Statement and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyRegistration Statement. Parent Live Oak and the Company each shall use their commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) keep the Registration Statement effective as long as is necessary to consummate the Transactionstransactions contemplated hereby. Prior to the effective date of the Registration Statement, Live Oak shall take all or any action required under any applicable federal or state securities Laws in connection with the issuance of shares of Live Oak Class A Common Stock, in each case to be issued or issuable to the Shareholders pursuant to this Agreement. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute finalization of the Proxy Statement to its stockholdersStatement, and, pursuant thereto, Live Oak shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute mail the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call Live Oak Stockholders. Each of Live Oak and the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other Party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent Live Oak without the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Live Oak will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Live Oak Class A Common Stock to be issued or issuable to the holders of Company Securities Shareholders in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent Live Oak and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld withheld, conditioned or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent The Company will use commercially reasonable efforts to provide Live Oak as promptly as reasonably practicable with all such information concerning the operations and business of the Business and the Company and the Company’s management and operations and financial condition, in each case, required or reasonably requested by the Live Oak to be included in the Proxy Statement and the Registration Statement including required financial statements (including pro forma financial statements) of the Business prepared in accordance with SEC Guidance including the requirements of Regulation S-X and a related Consent from the Business’s independent public accountants. The Company shall use its commercially reasonable best efforts to ensure make the directors, officers and employees of the Company available to Live Oak and its counsel (and other Representatives engaged in connection with the preparation of the Proxy Statement) in connection with the drafting of the Proxy Statement and the Registration Statement, as reasonably requested by Live Oak.
(d) Live Oak represents that the information supplied by Parent Live Oak for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Live Oak Stockholders, (iii) the time of each of the Parent Stockholders’ Meeting and the Company Live Oak Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to Live Oak or Merger Sub, or their respective officers or directors, should be discovered by Live Oak which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Live Oak shall promptly inform the Company. All documents that Live Oak is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(e) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and Live Oak Stockholders, (iii) the time of the Parent Stockholders’ Meeting and the Company Live Oak Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any of its Subsidiaries, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsLive Oak. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Proxy Statement; Registration Statement. (ai) As soon promptly as reasonably practicable following the date execution and delivery of this Agreement, Parent the Parties, in accordance with this Section 7.1(a), shall prepare, in preliminary form, and the Company New PubCo shall use commercially reasonable efforts to jointly prepare file, a registration statement on Form S-4 F-4 or other applicable form with the SEC (together with all amendments theretosuch registration statement (including the Proxy Statement) as amended or supplemented, the “Registration Statement”), which will include (A) a proxy statement to be filed by Parent with sent to the SEC, pursuant to which the offer and sale/issuance SPAC Shareholders in advance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint Special Meeting (such proxy statement/prospectus (, as amended or supplemented, the “Proxy Statement”) to be sent to for the stockholders purposes of Parent and (I) providing SPAC Shareholders with notice of the Company. Pursuant opportunity to redeem SPAC Class A Ordinary Shares (the Proxy Statement“SPAC Shareholder Redemption”), and (iII) Parent shall solicit soliciting proxies from Parent’s stockholders holders of SPAC Class A Ordinary Shares to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) Special Meeting in favor of of: (A1) the approval and adoption of this Agreement and approval of the Ancillary Agreements Transactions; (2) the approval and authorization of the transactions contemplated hereby or thereby, including Plan of Merger and associated documents by way of special resolution pursuant to the Merger, and Companies Act; (B3) the issuance of New PubCo Ordinary Shares in connection with the Transactions in accordance with this Agreement; (4) the adoption of the New PubCo A&R Charter by way of special resolution pursuant to the Companies Act; (5) the approval of the New PubCo Equity Plan; (6) any approval of other proposals as the SEC (or staff member thereof) may indicate are necessary in its comments to the Registration Statement or correspondence related thereto; (7) any other proposals the Company and Parent shall hereafter mutually determine to be Parties deem necessary or appropriate in order to effect consummate the Merger Transactions; and (8) adjournment of the other transactions contemplated by this Agreement Special Meeting if necessary to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval SPAC Shareholder Matters”), and (CB) a prospectus for the adjournment registration under the Securities Act, to the extent permitted by applicable rules and regulations of the Company Stockholders’ MeetingSEC, if necessary or desirable the New PubCo Ordinary Shares to be issued in connection with the reasonable determination Transactions (including any New PubCo Ordinary Shares to be issued in connection with SPAC Warrants) (together, the “Registration Shares”). Without the prior written consent of the Company, (each such consent not to be unreasonably withheld, conditioned or delayed), the SPAC Shareholder Matters shall be the only matters (other than procedural matters) which SPAC shall propose to be acted on by the SPAC Shareholders at the Special Meeting. Parent and the Company The Parties each shall use their commercially reasonable efforts to (iA) cause the Registration Statement Statement, when filed with the SEC to comply as to form and substance with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder in all material respects with all legal requirements applicable thereto, and respects; (iiB) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially , provided that prior to responding to any requests or comments from the SEC, New PubCo will make available to the Company and SPAC (including their respective counsel) drafts of any such response and provide the Company and SPAC (including their respective counsel) with a reasonable efforts opportunity to comment on such drafts and will consider any such comments in good faith; (iC) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable practicable; and (iiD) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after In the Registration Statement becomes effective, (i) Parent shall distribute event that a tax opinion or comfort letter is required by the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance SEC with Nevada Law and (ii) the Company shall distribute the Proxy Statement respect to the Company’s stockholders, and, pursuant thereto, shall call Intended Tax Treatment of the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it Merger or the qualification of the Merger as may reasonably be requested by Parent a reorganization within the meaning of Section 368 of the Code in connection with such actions and the preparation of the Registration Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or Registration Statement, notwithstanding anything to the contrary, neither this provision nor any other provision in this Agreement shall require counsel to the Company or its tax advisors to provide such an opinion.
(ii) As promptly as reasonably practicable following the date that the Registration Statement is declared effective (the “Proxy Clearance Date”), SPAC shall file the definitive Proxy Statement with the SEC and cause such Proxy Statement to be mailed to its shareholders of record, as of the record date to be established by the SPAC Board in accordance with Section 7.1(b).
(iii) Prior to each filing with the SEC of the Registration Statement and any other documents to be filed with the SEC that relate to the Transactions, both preliminary and final, and any amendment or supplement thereto, New PubCo will be made by Parent make available to the Company and SPAC and their respective counsel a draft thereof and will provide the Company and SPAC (including their respective counsel) with a reasonable opportunity to comment on such draft and shall consider such comments in good faith. New PubCo shall not file any such documents with the SEC without the approval prior written consent of the Company and SPAC (such approval consent not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent New PubCo will advise the CompanyCompany and SPAC, promptly after it receives notice thereof, of of: (A) the time when the Registration Statement has become effective or been filed; (B) the effectiveness of the Registration Statement; (C) the filing of any supplement or amendment thereto has been filed, of to the Registration Statement; (D) the issuance of any stop order, order by the SEC or of the suspension initiation or written threat of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement any proceeding for offer or sale in any jurisdiction, or of such purpose; (E) any request by the SEC for amendment of the Proxy Statement or Registration Statement; (F) any comments from the SEC relating to the Registration Statement or comments thereon and responses thereto or thereto; and (G) requests by the SEC for additional informationinformation relating to the Registration Statement. Each of Parent and the Company Parties shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), ) any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(civ) Parent If, at any time prior to the Special Meeting, there shall use its reasonable best efforts be discovered any information that should be set forth in an amendment or supplement to ensure that the information supplied by Parent for inclusion in the Registration Statement and so that the Proxy Registration Statement shall would not contain include any untrue statement misstatement of a material fact or fail omit to state any material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in light of the circumstances under which they were madeParties shall promptly prepare, not misleading at (i) the time and New PubCo shall promptly file an amendment or supplement to the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meetingcontaining such information. If, at any time prior to the Effective TimeClosing, the Company discovers any information, event or circumstance relating to Parent or Merger Subany Group Company, the business of any Group Company, or their respective officers any Group Company’s Affiliates, officers, directors or directors, should be discovered by Parent which employees that should be set forth in an amendment or a supplement to the Registration Proxy Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in so that the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in would not include any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement misstatement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of then the Company shall promptly inform New PubCo and (iii) the time SPAC of the Parent Stockholders’ Meeting and the Company Stockholders’ Meetingsuch information, event or circumstance. If, at any time prior to the Effective TimeClosing, SPAC discovers any information, event or circumstance relating to any SPAC Party, the Companybusiness of any SPAC Party, or their respective officers any SPAC Party’s Affiliates, officers, directors or directors, should be discovered by the Company employees that should be set forth in an amendment or a supplement to the Proxy Statement so that the Registration Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the Proxy Statementstatements therein, in light of the Company circumstances under which they were made, not misleading, then SPAC shall promptly inform Parent. The New PubCo and the Company of such information, event or circumstance.
(v) New PubCo or SPAC, as applicable, shall make all necessary filings, as required for itself, with respect to the Transactions under the Securities Act, the Exchange Act and applicable “blue sky” laws and any rules and regulations thereunder.
(vi) Each of SPAC and New PubCo agrees to use commercially reasonable efforts to promptly correct any furnish to the other Party and its Representatives all information provided by it for use in the Registration Statement (within its possession concerning itself, its Subsidiaries, officers, directors, managers, stockholders, and other related materials) if and to the extent that equityholders, as well as information regarding such information is determined to have become false other matters as may be reasonably necessary or misleading in any material respect advisable or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC may be reasonably requested in connection with the Merger Registration Statement, Proxy Statement, a Current Report on Form 8-K pursuant to the Exchange Act in connection with the Transactions, or any other statement, filing, notice or application made by or on behalf of SPAC or the other transactions contemplated by this Agreement shall comply as Company to form and substance any regulatory authority (including Nasdaq) in all material respects connection with the applicable requirements of the Securities Act and the Exchange ActTransactions.
Appears in 1 contract
Sources: Business Combination Agreement (Jaguar Global Growth Corp I)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the Required Financials, Parent (i) GAMC and the Company shall use commercially reasonable efforts to jointly prepare and GAMC shall file with the SEC a proxy statement to be filed with the SEC as part of the Registration Statement and sent to GAMC stockholders relating to the GAMC Stockholders’ Meeting (such proxy statement, together with any amendments or supplements thereto, the “Proxy Statement”) and (ii) GAMC and the Company shall jointly prepare, and GAMC shall file with the SEC, a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus (the “Prospectus”, and together with the SEC, pursuant to which Proxy Statement and the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplementedStatement, the “Proxy Statement/Registration Statement”) ), in connection with the registration under the Securities Act of the shares of New GAMC Common Stock to be sent issued as Transaction Consideration pursuant to the stockholders of Parent and this Agreement.
(b) Each of the Company. Pursuant to Company and GAMC shall furnish all information concerning itself as the other party may reasonably request in connection with such actions and the preparation of the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at /Registration Statement in connection with the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectivelyAgreement, or any other statement, filing, notice or application made by or on behalf of GAMC, Merger Sub, the “Parent Proposals”) and Company or any Company Subsidiary to any regulatory authority (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”including Nasdaq) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance connection with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger Mergers and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyTransactions. Parent GAMC and the Company each shall use commercially their reasonable best efforts to (i) cause the Proxy Statement and the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after filing with the SEC and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As Prior to the effective date of the Registration Statement, GAMC shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of New GAMC Common Stock, in each case to be issued or issuable to the stockholders of the Company in connection with this Agreement. GAMC will cause the Proxy Statement to be mailed to its stockholders in each case promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute is declared effective under the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation of the Registration StatementSecurities Act.
(bc) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent GAMC or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . GAMC and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent New GAMC Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent GAMC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(cd) Parent shall use its reasonable best efforts to ensure GAMC represents that the information supplied by Parent GAMC for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of GAMC and the Company and Company, (iii) the time of each of the Parent Stockholders’ Meeting and the Company GAMC Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to GAMC or Merger Sub, or their respective officers or directors, should be discovered by GAMC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, GAMC shall promptly inform the Company. All documents that GAMC is responsible for filing with the SEC in connection with the Merger or the other Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(e) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent GAMC and the stockholders of the Company and Company, (iii) the time of the Parent Stockholders’ Meeting and the Company GAMC Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsGAMC. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(f) If, in connection with the preparation and filing of the Registration Statement (including the Proxy Statement contained therein) or the SEC’s review thereof, the SEC requests or requires that a Tax opinion with respect to the U.S. federal income tax consequences of the Transactions be prepared and submitted, the parties shall deliver to counsel customary Tax representation letters satisfactory to such counsel, dated and executed as of the date such relevant filing shall have been declared effective by the SEC and such other date(s) as determined to be reasonably necessary by such counsel in connection with the preparation and filing of such Tax opinion. Notwithstanding anything to the contrary in this Agreement, none of GAMC, the Company or their respective Tax advisors are obligated to provide any opinion that the Transactions contemplated by this Agreement qualify for the Merger Intended Tax Treatment, other than a customary opinion regarding the material accuracy of any disclosure regarding U.S. federal income tax considerations of the Transactions included in the Registration Statement (including the Proxy Statement contained therein) as may be required to satisfy applicable rules and regulations promulgated by the SEC, nor will a Tax opinion by any party’s advisors be a condition precedent to the Transactions.
Appears in 1 contract
Sources: Business Combination Agreement (Golden Arrow Merger Corp.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution and delivery of this Agreement and the delivery of each of the Alvarium PCAOB Financials, the TWMH PCAOB Financials and the TIG Entities PCAOB Financials, SPAC and the Companies shall prepare and (i) SPAC shall file with the SEC a proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to SPAC Shareholders soliciting proxies in favor of the SPAC Proposals from the SPAC Shareholders in connection with the extraordinary general meeting of SPAC Shareholders (the “SPAC Shareholders’ Meeting”) to be held to consider approval and adoption of (A) this Agreement and the Transactions, (B) the Domestication, (C) the SPAC Certificate of Incorporation and SPAC Bylaws, including certain governance provisions in the SPAC Certificate of Incorporation, (D) the issuance of shares of SPAC Common Stock as contemplated by this Agreement, Parent (E) the Equity Incentive Plan, and (F) any other proposals the Company Parties deem necessary or appropriate to effectuate the Transactions (collectively, the “SPAC Proposals”) and (ii) SPAC shall use commercially reasonable efforts to jointly prepare file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent SPAC Common Stock comprising to be issued pursuant to, and in connection with, this Agreement. The Companies shall furnish all information concerning the Aggregate Merger Consideration shall be registered under Companies as SPAC may reasonably request in connection with such actions and the Securities Actpreparation of the Proxy Statement and Registration Statement, which including updates to the Alvarium PCAOB Financials, the TIG PCAOB Financials and the TWMH PCAOB Financials as required prior to the effective date of the Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Companyaddress subsequent interim periods. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement SPAC and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company Companies each shall use commercially their respective reasonable best efforts to (i1) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii2) respond as promptly as reasonably practicable to and resolve all comments received from the SEC or its staff concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (i3) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after filing with the SEC, and (ii4) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, SPAC shall take all or any action required under any applicable federal or state securities Laws in connection with the issuance of the shares of SPAC Common Stock, in each case to be issued or issuable pursuant to, and in connection with, this Agreement. As promptly as practicable practicable, and in no event later than five (5) Business Days after the effective time of the Registration Statement becomes effectiveStatement, (i) Parent SPAC shall distribute use its commercially reasonable efforts to cause the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement be mailed to the Company’s stockholders, and, pursuant thereto, SPAC Shareholders. Each of SPAC and the Companies shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent SPAC or the Companies without the approval of the Company other Parties (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is except as required by applicable Law. SPAC or the SEC and United States securities Laws to be included therein. Parent Companies each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent shares of SPAC Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC or its staff for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC or its staff for additional information. Each SPAC and each of Parent and the Company Companies shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld withheld, conditioned or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts SPAC hereby represents and warrants to ensure the Companies that the information supplied by Parent SPAC for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and SPAC Shareholders, (iii) the time of each of the Parent Stockholders’ Meeting and the Company StockholdersSPAC Shareholders’ Meeting. If, at any time prior to the and (iv) Umbrella Merger Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Umbrella Merger Effective Time, any event or circumstance relating to the Cartesian Entities, or their respective officers or directors, should be discovered by SPAC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, SPAC shall promptly inform the Companies. All documents that SPAC is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) Each Company hereby severally represents and warrants to SPAC that the information supplied by such Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and SPAC Shareholders, (iii) the time of the Parent Stockholders’ Meeting and the Company StockholdersSPAC Shareholders’ Meeting, and (iv) the Umbrella Merger Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Umbrella Merger Effective Time, any event or circumstance relating to the Companysuch Company or any Company Subsidiary, or their respective officers officers, directors or directorsmanagers, should be discovered by the such Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the such Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsSPAC. All documents that the each Company is responsible for filing with the SEC in connection with filing of the Merger or Registration Statement and the other transactions contemplated by this Agreement shall Proxy Statement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Sources: Business Combination Agreement (Cartesian Growth Corp)
Proxy Statement; Registration Statement. (a) As soon promptly as practicable after the execution of this Agreement and Apex’s receipt of the Annual Financial Statements and the Interim Financial Statements, subject to the terms of this Section 7.01, Apex (with the assistance and cooperation of the Company as reasonably practicable following requested by Apex) shall prepare and file with the date SEC (i) a joint prospectus/proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Apex relating to the meeting of Apex’s stockholders (including any adjournment or postponement thereof, the “Apex Stockholders’ Meeting”) to be held to consider (1) approval of this Agreement and the transactions contemplated by this Agreement, Parent including the Mergers, (2) approval of the issuance of Apex Common Stock in connection with the Private Placements pursuant to the Subscription Agreements and Apex Common Stock as contemplated by this Agreement, in accordance with the DGCL, the Apex Organizational Documents and the rules and regulations of the Nasdaq Capital Market, (3) the approval and adoption of the Amended and Restated Apex Certificate of Incorporation, (4) the approval and adoption of an equity incentive plan (the “Apex Equity Incentive Plan”), in form and substance reasonably acceptable to Apex and the Company shall use commercially reasonable efforts that provides for grant of awards to jointly prepare employees and other service providers of Apex and its subsidiaries in the form of options, restricted shares, restricted share units or other equity-based awards based on Apex Class A Common Stock with a total pool of awards of Apex Class A Common Stock not exceeding (A) twelve percent (12%) of the aggregate number of the sum of (x) shares of Apex Common Stock outstanding at the Closing and (y) securities convertible into Apex Common Stock, plus (B) an amount equal to the product (rounded down to the nearest whole number) of (I) the number of shares of Company Common Stock subject to the PRC Options immediately prior to the Effective Time and (II) the Exchange Ratio, with an annual “evergreen” increase of not more than five percent (5%) of the shares of Apex Common Stock outstanding as of the day prior to such increase, (5) the approval and adoption of an employee stock purchase plan, in form and substance reasonably acceptable to Apex and the Company, that provides for grant of purchase rights with respect to Apex Class A Common Stock to employees of Apex and its subsidiaries with a total pool of shares of Apex Class A Common Stock not exceeding one and one half percent (1.5%) of the aggregate number of the sum of (x) shares of Apex Common Stock outstanding at the Closing and (y) securities convertible into Apex Common Stock, with an annual “evergreen” increase of one percent 1% of the shares of Apex Common Stock outstanding as of the day prior to such increase (the proposals in clauses (4) and (5), the “Equity Proposals”), (6) the appointment, and designation of classes, of the members of the Apex Board as set forth on Exhibit K and (7) any other proposals the parties deem necessary to effectuate the Transactions (collectively, the “Apex Proposals”); and (ii) a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent Apex Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent issued to the stockholders of Parent and of the Company. Pursuant Company pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or therebyAgreement, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyContingent Consideration. Parent Apex and the Company shall each pay one half of all registration and filing fees and printing and mailing costs due in connection with the Registration Statement. Notwithstanding the foregoing, the Equity Proposals are subject to approval by each of the Company Board and the Apex Board (the “Board Approvals”) following the receipt of a report from a compensation consulting firm of national reputation (the “Compensation Report”) and prior to the filing of the Proxy Statement. As promptly as practicable following the date hereof, and in any event within ten Business Days, the Company shall deliver to Apex the Compensation Report. In the absence of obtaining the Board Approvals for the Equity Proposals as set forth herein, the Company and Apex shall discuss reasonable modifications to the Equity Proposals to obtain such Board Approvals.
(b) Each of Apex and the Company shall furnish all information concerning such party as may reasonably be requested by the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement. Apex and the Company each shall use commercially their reasonable best efforts to (i) cause the Proxy Statement and the Registration Statement Statement, when filed with the SEC SEC, to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to to, and resolve all comments received from from, the SEC concerning the Proxy Statement or the Registration Statement. Parent shall use commercially reasonable efforts , (iii) to (i) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, Apex shall use commercially reasonable efforts to take any action required under any applicable federal or state securities laws in connection with the issuance of shares of Apex Common Stock to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after following the Registration clearance of the Proxy Statement becomes effectiveby the SEC, (i) Parent Apex shall distribute mail the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation of the Registration Statement.
(bc) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent Apex or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . Apex and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Apex Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent Apex and the Company shall cooperate in the preparation of, and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(cd) Parent shall use its reasonable best efforts to ensure Apex represents that the information supplied by Parent Apex for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Apex, (iii) the time of each of the Parent Stockholders’ Meeting and the Company Apex Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to Apex or Merger Subs, or their respective officers or directors, should be discovered by Apex which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Apex shall promptly inform the Company. All documents that Apex is responsible for filing with the SEC in connection with the Mergers or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(e) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and Apex, (iii) the time of the Parent Stockholders’ Meeting and the Company Apex Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the Companyany Company Group Member, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsApex. All documents that the Company is responsible for filing with the SEC in connection with the Merger Mergers or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Sources: Business Combination Agreement (Apex Technology Acquisition Corp)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following the date execution and delivery of this AgreementAgreement and the availability of the Company’s financial statements for the 52 weeks ended August 27, 2016, the 35 weeks ended August 29, 2015, the 52 weeks ended December 27, 2014 and December 28, 2013, and the 26 weeks ended February 25, 2017 and February 27, 2016, Parent shall, in accordance with this Section 5.11, prepare and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent file with the SEC, pursuant to which in preliminary form, a proxy statement in connection with the offer transactions contemplated hereby and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus Offer (as amended or supplemented, the “Proxy Statement”) and provide its stockholders with the opportunity for up to 40,250,000 shares of Parent Common Stock (the “Offering Shares”) to be redeemed in conjunction with a stockholder vote on the transactions contemplated hereby, such proxy to be sent to the stockholders of Parent relating to the Parent Common Stockholders Meeting in definitive form, all in accordance with and as required by Parent’s Organizational Documents, any related agreements with Parent, Parent Sponsor and its Affiliates, applicable Law and any applicable rules and regulations of the CompanySEC and NASDAQ. Pursuant to Without limitation, in the Proxy Statement, Parent shall (i) Parent shall solicit proxies from Parent’s stockholders holders of Parent Common Stock and Parent Class B Stock to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) Common Stockholders Meeting in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and approval of the transactions contemplated hereby or thereby, including the Merger, by the holders pursuant to Section 251 of the Capital Stock DGCL, and (B) any other proposals the Parties deem necessary or desirable to consummate the transactions contemplated hereby (collectively, the “Transaction Proposals”), and (ii) file with the SEC financial and other information about the transactions contemplated hereby in accordance with the Company Organizational Documents, the Laws Regulation 14A of the State Exchange Act. The Proxy Statement will comply as to form and substance with the applicable requirements of Delaware and the State of Nevada Exchange Act and the rules and regulations thereunder. As promptly as practicable following the execution and delivery of this Agreement, PubCo shall prepare and file with the SEC and Nasdaq, a registration statement on Form S-4 (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary amended or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectivelysupplemented, the “Company Stockholder Approval MattersRegistration Statement”), in which the Proxy Statement shall be included as a prospectus, pursuant to which the shares of PubCo Common Stock and PubCo Warrants (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shares of PubCo Common Stock issuable upon the exercise of such PubCo Warrants but in each case other than shares of Parent Common Stock held by Parent Sponsor) to be issued to the holders of Parent Common Stock and Parent Warrants pursuant to the Mergers shall be registered for issuance under the Securities Act. In addition, PubCo shall use commercially reasonable efforts to (i) cause register the issuance and resale of the PubCo Common Stock to be issued to the Equity Holders and the Parent Sponsor on the Registration Statement when filed and if not so registered, the PubCo agrees that, within forty-five (45) calendar days after the consummation of Closing it shall file with the SEC to comply in all material respects with all legal requirements applicable thereto, (at the PubCo’s sole cost and (iiexpense) respond as promptly as reasonably practicable to a registration statement registering such resale and resolve all comments received from the SEC concerning the Registration Statement. Parent PubCo shall use its commercially reasonable efforts to (i) cause have the Registration Statement to be declared effective under the Securities Act as promptly soon as practicable after the filing thereof. For the avoidance of doubt the sale and transfer of the PubCo Common Stock issued to the Equity Holders shall be subject to the Investor Rights Agreement.
(iib) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes shall have become effective, (i) Parent shall distribute mail the Proxy Statement to its stockholdersholders of Parent Common Stock and Parent Class B Stock of record, and, pursuant thereto, shall call as of the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) record date to be established by the board of directors of Parent. Each of the Company and Parent shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it such Party and its Affiliates to the other Party, and provide such other assistance, as may be reasonably be requested by Parent in connection with such actions the preparation, filing and distribution of the preparation of Proxy Statement and the Registration Statement.
(b) No filing of, and the Proxy Statement and Registration Statement shall include all information reasonably requested by such other Party to be included therein. Each of the Company and Parent shall promptly notify the other upon the receipt of any comments from the SEC or amendment any request from the SEC for amendments or supplement supplements to the Proxy Statement or Registration Statement and shall provide the other with copies of all correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand. Each of the Company and Parent shall use its reasonable best efforts to respond as promptly as reasonably practicable to any comments from the SEC with respect to the Proxy Statement.
(c) Prior to filing with the SEC or mailing to Parent’s Stockholders, Parent and PubCo will make available to the Company drafts of the Proxy Statement, and the Registration Statement Statement, both preliminary and final and will be made provide the Company with a reasonable opportunity to comment on such drafts, shall consider such comments in good faith and shall accept all reasonable additions, deletions or changes suggested by the Company in connection therewith. Neither Parent nor PubCo shall file any such documents with the SEC (including response to any comments from the SEC with respect thereto) without the approval prior written consent of the Company (such approval consent not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent and PubCo will advise the Company, Company promptly after it receives receipt of notice thereof, of (i) the time when each of the Proxy Statement and the Registration Statement has become effective have been filed, (ii) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act, (iii) in the event the preliminary Proxy Statement or the Registration Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC, (iv) the filing of any supplement or amendment thereto has been filedto the Proxy Statement or the Registration Statement, of (v) the issuance of any stop order, of order by the suspension of the qualification of the Parent Common Stock to be issued or issuable SEC with respect to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdictionRegistration Statement, or of (vi) any request by the SEC for amendment of the Proxy Statement or the Registration Statement or Statement, (vii) any comments thereon and responses thereto or requests by from the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect relating to the Proxy Statement or the Registration Statement and responses thereto, or (viii) requests by the SEC for additional information. Parent and PubCo shall promptly respond to any SEC comments on the Proxy Statement and the Registration Statement and each shall use its reasonable best efforts to have the Proxy Statement cleared by the SEC under the Exchange Act, and the Registration Statement declared effective by the SEC under the Securities Act, as soon after filing as practicable; provided, that prior to responding to any comments or material requests from the SEC, Parent will make available to the Company drafts of any such response and provide the Company with a reasonable opportunity to comment on such drafts (including the proposed final version of such document or response).
(d) If at any time prior to the Parent Common Stockholders Meeting there shall be discovered any information that should be set forth in an amendment or supplement to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, so that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall or the Registration Statement, as applicable, would not contain include any untrue statement misstatement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) Parent or PubCo, as applicable, shall promptly transmit to its stockholders an amendment or supplement to the time Proxy Statement or the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meetingcontaining such information. If, at any time prior to the Effective Time, the Company discovers any information, event or circumstance relating to the Company, Group Companies or any of their respective officers Affiliates, officers, directors or directors, should be discovered by the Company employees that should be set forth in an amendment or a supplement to the Proxy Statement or the Registration Statement so that the Proxy Statement or the Registration Statement, as applicable, would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, then the Company shall promptly inform Parent or PubCo, as applicable, of such information, event or circumstance.
(e) Parent and PubCo shall make all necessary filings with respect to the transactions contemplated hereby under the Securities Act, the Exchange Act and applicable “blue sky” laws and any rules and regulations thereunder.
(f) The Company shall use its commercially reasonable efforts to promptly provide Parent and PubCo with all information concerning the Group Companies reasonably requested by Parent for inclusion in the Proxy Statement, the Company shall promptly inform ParentRegistration Statement and any amendment or supplement to the Proxy Statement or the Registration Statement (if any). The Company shall promptly correct any information provided by it for use in cause the Registration Statement (officers and other related materials) if employees of the Group Companies to be reasonably available to Parent, PubCo and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC their counsel in connection with the Merger drafting of the Proxy Statement and the Registration Statement and responding in a timely manner to comments on the Proxy Statement and the Registration Statement from the SEC. The Company shall provide to Parent and PubCo the unaudited consolidated balance sheet and related unaudited statements of operations and cash flows of the Company and its Subsidiaries for each fiscal quarter of the Company ended after February 24, 2017 and at least forty-five (45) days prior to the Closing Date, in each case within forty-five (45) days following the end of such fiscal quarter.
(g) Parent shall not terminate or withdraw the Offer other than in connection with the valid termination of this Agreement in accordance with Article VIII. Parent shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC, NASDAQ or the other transactions contemplated by respective staff thereof that is applicable to the Offer. Nothing in this Section 5.11(g) shall (i) impose any obligation on Parent to extend the Offer beyond the Outside Date, or (ii) be deemed to impair, limit or otherwise restrict in any manner the right of Parent to terminate this Agreement in accordance with Article VIII.
(h) PubCo shall comply use its reasonable best efforts to (i) cause the shares of PubCo Common Stock to be issued to the Equity Holders as provided in Article II to form be approved for listing on NASDAQ upon issuance, and substance in (ii) make all material respects necessary and appropriate filings with NASDAQ and undertake all other steps reasonably required prior to the applicable requirements of the Securities Act and the Exchange ActClosing Date to effect such listing.
Appears in 1 contract
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable after the execution of this Agreement following receipt of the PCAOB Financials by Pubco (and, in any case, no later than the date that is the later of June 7, 2023 and the date that is five (5) Business Days following the date receipt of this Agreementthe PCAOB Financials by Pubco), Parent (i) Pubco and Holdco shall prepare and file with the SEC a joint prospectus/proxy statement (as amended or supplemented, the “Proxy Statement”) at the expense of Pubco, to be sent to the stockholders of Pubco and to the stockholders of Holdco as information statements relating to (A) with respect to Holdco’s stockholders, the actions to be taken by certain stockholders of Holdco pursuant to the Written Consents and (B) with respect to Pubco’s stockholders, the Pubco Stockholders’ Meeting to be held to consider (1) the adoption and approval of the Mergers, the Pubco Effective Time Certificate, the issuance of the Pubco Shares and Pubco Non-Voting Shares in the Mergers and, to the extent applicable, the change of control resulting from the Mergers (the “Transaction Proposal”), (2) adjournment of the Pubco Stockholders’ Meeting, if necessary to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing proposal (the “Adjournment Proposal”) and (3) the adoption and approval of any other proposals the parties deem necessary to effectuate the Transactions (each, an “Additional Proposal” and together with the Transaction Proposal and the Company shall use commercially reasonable efforts to jointly Adjournment Proposal, the “Pubco Proposals”) and (ii) Pubco shall, at its expense, prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered registration under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, Act of the “Proxy Statement”) Pubco Shares to be sent issued to the stockholders of Parent Holdco pursuant to this Agreement. Holdco shall furnish all information concerning Holdco as Pubco may reasonably request in connection with such actions and the preparation of the CompanyProxy Statement and Registration Statement. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval Pubco and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company Holdco each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements Laws applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, Pubco shall, at its expense, take all or any action required under any applicable federal or state securities laws in connection with the issuance of Pubco Shares and Pubco Non-Voting Shares, in each case to be issued or issuable to the stockholders of Holdco pursuant to this Agreement. As promptly as practicable after finalization of the Registration Statement becomes effectiveProxy Statement, (i) Parent each of Holdco and Pubco shall distribute mail the Proxy Statement to its their stockholders, and, pursuant thereto, . Each of Pubco and Holdco shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent Pubco or Holdco without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC . Pubco and United States securities Laws to be included therein. Parent Holdco each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock Pubco Shares and Pubco Non-Voting Shares to be issued or issuable to the holders stockholders of Company Securities Holdco in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional informationinformation and responses thereto. Each of Parent Pubco and the Company Holdco shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), ) any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure Pubco represents that the information supplied by Parent Pubco for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Pubco, (iii) the time of each of the Parent Stockholders’ Meeting and the Company Pubco Stockholders’ Meeting. If, at any time prior to and (iv) the First Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the First Effective Time, any event or circumstance relating to Pubco, Merger Sub I or Merger Sub II, or their respective officers or directors, should be discovered by Pubco which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Pubco shall promptly inform Holdco. All documents that Pubco is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) Holdco represents that the information supplied by Holdco for inclusion in the Registration Statement and the Proxy Statement or any current report on Form 8-K shall not, at (i) the time the Registration Statement is declared effectiveeffective (in the case of the Registration Statement or the Proxy Statement) or at the time filed (in the case of a current report on Form 8-K), (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and Pubco (in the stockholders case of the Company and Registration Statement or the Proxy Statement), (iii) the time of the Parent Pubco Stockholders’ Meeting (in the case of the Registration Statement or the Proxy Statement), and (iv) the Company Stockholders’ MeetingFirst Effective Time (in the case of the Registration Statement or the Proxy Statement), contain any untrue statement of a material fact or fail 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. If, at any time prior to the First Effective Time, any event or circumstance relating to the CompanyHoldco, or their respective its officers or directors, should be discovered by the Company that Holdco which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company Holdco shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsPubco. All documents that the Company ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Proxy Statement; Registration Statement. (a) As soon The Company shall promptly provide to the Parent such information concerning the Company as is either required by the SEC and federal securities Laws, or reasonably requested by the Parent for inclusion in the Proxy Statement and Registration Statement (each as hereinafter defined) to be filed by the Parent, and as promptly as reasonably practicable after (and in any event within 75 days after) the execution of this Agreement and receipt by the Parent from the Company of (i) all such information relating to the Company and (ii) the Initial Financial Information (as defined below), the Parent (with the assistance and cooperation of the Company as reasonably requested by the Parent) shall prepare and file with the SEC a joint information statement/proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the shareholders of the Parent and to the Sellers: (A) as an information statement relating, with respect to the Company’s members, to the action to be taken by members of the Company pursuant to the Written Consent or by vote at a meeting of the members of the Company and (B) as a proxy statement, with respect to the Parent’s shareholders, in which the Parent shall solicit proxies from the Parent’s shareholders to vote at the special meeting of the Parent’s shareholders called for the purpose of voting on the following matters (the date “Parent Shareholders’ Meeting”) in favor of: (1) the approval and adoption of this Agreement, the Transactions, the Domestication and the Merger which must be approved by a special resolution passed at a general meeting of the Parent, (2) the issuance of the Parent Ordinary Shares and Buyer Common Stock as contemplated by this Agreement and the Subscription Agreements, if any, (3) the approval of the Buyer A&R Organizational Documents that are required to be separately approved, (4) if agreed to pursuant to Section 8.6, the approval and adoption of the New Incentive Plan (as defined below), (5) the adjournment of the Parent Shareholders’ Meeting to a later date or dates if it is determined by the Parent and the Company that additional time is necessary to consummate the transactions contemplated hereby for any reason, and (6) any approval of other proposals the Parties deem necessary to effectuate the Merger and the other Transactions (collectively, the “Parent Proposals”), and the Parent shall use commercially reasonable efforts to jointly prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered registration under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, Act of the “Proxy Statement”) Buyer Common Stock to be sent issued to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment members of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination pursuant to this Agreement. Each of the Company. Parent Parent, the Buyer and the Company shall use commercially their reasonable best efforts to (iw) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (iix) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or the Registration Statement. Parent shall use commercially reasonable efforts to , (iy) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiz) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent the Buyer shall distribute mail the Proxy Statement to its stockholders. Each of the Buyer, andthe Parent, pursuant thereto, shall call and the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other Party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) The Company will, in addition to providing the Financial Statements, provide the Parent and the Buyer as promptly as practicable after the date of this Agreement (and in any event on or prior to the five (5) Business Day following the date of this Agreement) in accordance with Section 8.14: (i) the related pro forma adjustments necessary to prepare the pro forma financial statements in compliance with the requirements of Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC) (such pro forma financial adjustments together with the Financial Statements, the “Required Financials”) and cooperate as reasonably requested by the Parent or the Buyer in the preparation thereof, (ii) all selected financial data of the Company, as necessary for inclusion in the Proxy Statement and Registration Statement; and (iii) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the Securities Exchange Act (as if the Company was subject thereto) with respect to the periods covered in the Required Financials, as necessary for inclusion in the Proxy Statement and Registration Statement (together with the Required Financials, the “Initial Financial Information”). Subsequent to the delivery of the Required Financials, until the Registration Statement is declared effective, the Company’s consolidated interim financial information for each quarterly period thereafter will be delivered to the Parent and the Buyer no later than forty (40) calendar days following the end of each quarterly period, together with related pro forma adjustments that comply with the requirements of Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC). All of the financial statements to be delivered pursuant to this Agreement by the Company will be prepared in accordance with GAAP.
(c) The Company and its counsel shall be given a reasonable opportunity to review and comment on in writing the Proxy Statement prior to its filing with the SEC and any other amendments or documents filed with the SEC. No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent the Buyer or the Company without the approval of the Company other Party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (bc), the Parent and the Buyer will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parentthe Parent or the Buyer, is required by the SEC and United States securities Laws to be included therein. The Parent shall promptly transmit any such amendment or supplement to the Parent’s shareholders, if at any time prior to the Parent Shareholders’ Meeting there shall be discovered any information that should be set forth in an amendment or supplement to the Proxy Statement. The Parent and the Buyer, on the one hand, and the Company, on the other hand, each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Buyer Common Stock to be issued or issuable to the holders members of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of the Parent and the Company Buyer, on the one hand, and the Company, on the other hand, shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (bc), the Parent and the Buyer will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parentthe Parent or the Buyer, is required by the SEC and United States securities Laws to be included therein.
(cd) Each of the Parent shall use its reasonable best efforts to ensure and the Buyer represents that the information supplied by the Parent or the Buyer for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed sent to stockholders of Parent and the stockholders shareholders of the Company and Parent, (iii) the time of each of the Parent Stockholders’ Meeting and the Company StockholdersShareholders’ Meeting, and (iv) the Effective Time. If, at any time prior to the Effective Time, any event or circumstance relating to Parent the Parent, the Buyer or Merger SubNewco, or their respective officers or directorsdirectors or managers, should be discovered by the Parent or the Buyer which the Parent or the Buyer reasonably believes should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Parent and the Buyer shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ the Parent and the Buyer is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(de) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company it for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed sent to the stockholders of Parent and the stockholders shareholders of the Company and Parent, (iii) the time of the Parent Stockholders’ Meeting and the Company StockholdersShareholders’ Meeting, and (iv) the Effective Time. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directorsdirectors or managers, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company Company, shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsParties. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
Appears in 1 contract
Sources: Business Combination Agreement (Alchemy Investments Acquisition Corp 1)
Proxy Statement; Registration Statement. (a) As soon promptly as practicable after the execution of this Agreement and receipt of the PCAOB Financial Statements, (i) Goldenstone (with the assistance and cooperation of the Company as reasonably practicable following requested by Goldenstone, including delivery of the date of this Agreement, Parent PCAOB Financial Statements in accordance with Section 7.14) shall prepare and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent Goldenstone and from which the Company may derive an information statement that it can send to the stockholders of the Company. Pursuant Company relating to (A) with respect to the Proxy StatementCompany’s stockholders, the action to be taken by certain stockholders of the Company pursuant to the Written Consent and (iB) Parent shall solicit proxies from Parentwith respect to Goldenstone’s stockholders, the meeting of Goldenstone’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Goldenstone Stockholders’ Meeting”) in favor of (A) the to be held to consider approval and adoption of (1) this Agreement and the Ancillary Agreements Merger, (2) the second amended and restated Goldenstone Certificate of Incorporation as set forth on Exhibit E, (3) the transactions contemplated hereby Equity Plan (as defined below), (4) the classes of the members of the Goldenstone Board as of immediately following the Effective Time, (5) the election of the Initial Post-Closing Goldenstone Directors to serve as the members of the Goldenstone Board as of immediately following the Effective Time and until their respective successors are duly elected or thereby, including the Mergerappointed and qualified, and (B6) any approval of other proposals the Company and Parent shall hereafter mutually determine parties deem necessary to be necessary or appropriate in order to effect effectuate the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Goldenstone Proposals”) and (ii) Goldenstone shall prepare and file with the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting SEC a registration statement on the following matters Form S-4 (together with all amendments thereto, the “Company Stockholders’ MeetingRegistration Statement”) in favor of (A) which the adoption and approval of this Agreement and Proxy Statement shall be included, in connection with the Ancillary Agreements and registration under the transactions contemplated hereby or thereby, including the Merger, by the holders Securities Act of the Capital shares of Goldenstone Common Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order issued to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment stockholders of the Company Stockholders’ Meeting, if necessary or desirable pursuant to this Agreement. The Company shall furnish all information concerning the Company as Goldenstone may reasonably request in connection with such actions and the reasonable determination preparation of the CompanyProxy Statement and Registration Statement. Parent Goldenstone and the Company each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable practicable, and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, Goldenstone shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of Goldenstone Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after the Registration Statement becomes is declared effective, (i) Parent each of the Company and Goldenstone shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law . Each of Goldenstone and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement Statement, will be made by Parent Goldenstone without the approval of the Company (such approval not to be unreasonably withheld, conditioned conditioned, or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . Goldenstone and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Goldenstone Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent Goldenstone and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure Goldenstone represents that the information supplied by Parent Goldenstone for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Goldenstone, (iii) the time of each of the Parent Stockholders’ Meeting and the Company Goldenstone Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to Goldenstone or Merger Sub, or their respective officers or directors, should be discovered by Goldenstone which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Goldenstone shall promptly inform the Company. All documents that Goldenstone is responsible for filing with the SEC in connection with the Merger or the other Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and Goldenstone, (iii) the time of the Parent Stockholders’ Meeting and the Company Goldenstone Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsGoldenstone. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(e) Without the prior written consent of the Company, the Goldenstone Proposals shall be the only matters (other than procedural matters) which Goldenstone shall propose to be acted on by Goldenstone stockholders at the Goldenstone Stockholders’ Meeting.
Appears in 1 contract
Sources: Business Combination Agreement (Goldenstone Acquisition Ltd.)
Proxy Statement; Registration Statement. (ai) As soon promptly as reasonably practicable following the date execution and delivery of this Agreement, Parent New PubCo shall, and the Company shall use commercially reasonable efforts to jointly prepare cause New PubCo to, in accordance with this Section 7.1(a), prepare, in preliminary form, and file, and Company shall assist and cooperate with the preparation and filing of, a registration statement on Form S-4 F-4 or other applicable form with the SEC (together with all amendments theretosuch registration statement (including the Proxy Statement (as defined below)) as amended or supplemented, the “Registration Statement”) ), and SPAC shall assist and cooperate with the preparation of a proxy statement to be filed by Parent with sent to the SEC, pursuant to which the offer and sale/issuance SPAC Shareholders in advance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint Special Meeting (such proxy statement/prospectus (, as amended or supplemented, the “Proxy Statement”) for the purposes of (I) registering under the Securities Act, to the extent permitted by applicable rules and regulations of the SEC, the New PubCo Ordinary Shares to be sent issued in connection with the Transactions (including any New PubCo Ordinary Shares to the stockholders of Parent and be issued upon exercise of the Company. Pursuant to SPAC Warrants assumed by New PubCo and the Proxy StatementEarn-Out Shares) (together, the “Registration Shares”), (iII) Parent shall solicit providing SPAC Shareholders with notice of the opportunity to redeem SPAC Class A Ordinary Shares (the “SPAC Shareholder Redemption”) in accordance with the terms of the SPAC Governing Documents, and (III) soliciting proxies from Parent’s stockholders holders of SPAC Class A Ordinary Shares to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) Special Meeting in favor of: (1) the adoption of this Agreement and approval of the Transactions; (A2) the approval and authorization of the First Plan of Merger and the Second Plan of Merger by way of special resolution pursuant to the Companies Act; (3) the approval and adoption of this Agreement the New PubCo Equity Plan; (4) the adoption of the New PubCo A&R Memorandum and Articles of Association by way of special resolution pursuant to the Companies Act and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and SPAC Governing Documents; (B5) any approval of other proposals the Company and Parent shall hereafter Parties mutually determine to be deem necessary or appropriate in order to effect consummate the Merger Transactions; and (6) adjournment of the other transactions contemplated by this Agreement Special Meeting if necessary to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (collectively, the “Parent ProposalsSPAC Shareholder Matters”) and (ii) ). Without the prior written consent of the Company (each such consent not to be unreasonably withheld, conditioned or delayed), the SPAC Shareholder Matters shall solicit proxies from be the Company’s stockholders only matters (other than procedural matters) which SPAC shall propose to vote be acted on by the SPAC Shareholders at the special meeting Special Meeting. The Registration Statement will comply as to form and substance with the applicable requirements of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement Securities Act and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada Exchange Act and the rules and regulations of the SEC thereunder and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (ii) keep the Registration Statement will remain effective as long as is necessary to consummate the Transactions. As .
(ii) SPAC shall file the definitive Proxy Statement with the SEC and cause such Proxy Statement to be mailed to its shareholders of record, as of the record date to be established by the board of directors of SPAC in accordance with Section 7.1(b), as promptly as practicable after following the effectiveness of the Registration Statement becomes effective(such date, the “Proxy Clearance Date”).
(iiii) Parent shall distribute Prior to each filing with the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation SEC of the Registration Statement.
(b) No filing ofStatement and any other documents to be filed with the SEC that relate to the Transactions, or both preliminary and final, and any amendment or supplement thereto, New PubCo will make available to the Proxy Statement or Company and SPAC and their respective counsel a draft thereof and will provide the Registration Statement will be made by Parent Company and SPAC (including their respective counsel) with a reasonable opportunity to comment on such draft and shall consider such comments in good faith. New PubCo shall not file any such documents with the SEC without the approval prior written consent of the Company and SPAC (such approval consent not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent New PubCo will advise the CompanyCompany and SPAC, promptly after it receives notice thereof, of of: (A) the time when the Registration Statement has become effective or been filed; (B) the effectiveness of the Registration Statement; (C) the filing of any supplement or amendment thereto has been filed, of to the Registration Statement; (D) the issuance of any stop order, order by the SEC or of the suspension initiation or written threat of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement any proceeding for offer or sale in any jurisdiction, or of such purpose; (E) any request by the SEC for amendment of the Proxy Statement or Registration Statement; (F) any comments from the SEC relating to the Registration Statement or comments thereon and responses thereto or thereto; and (G) requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect information relating to the Proxy Statement or Registration Statement. New PubCo shall respond to any SEC comments on the Registration Statement as promptly as practicable and any amendment shall use commercially reasonable efforts to the Proxy Statement or have the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required cleared by the SEC under the Securities Act as promptly as practicable; provided that prior to responding to any requests or comments from the SEC, New PubCo will make available to the Company and United States securities Laws SPAC (including their respective counsel) drafts of any such response and provide the Company and SPAC (including their respective counsel) with a reasonable opportunity to be included thereincomment on such drafts and will consider any such comments in good faith.
(civ) Parent If, at any time prior to the Special Meeting, there shall use its reasonable best efforts be discovered any information that should be set forth in an amendment or supplement to ensure that the information supplied by Parent for inclusion in the Registration Statement and so that the Proxy Registration Statement shall would not contain include any untrue statement misstatement of a material fact or fail omit to state any material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in light of the circumstances under which they were made, not misleading at (i) the time New PubCo shall promptly file an amendment or supplement to the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meetingcontaining such information. If, at any time prior to the Effective TimeClosing, the Company discovers any information, event or circumstance relating to Parent the Company, its business or Merger Subany of its Affiliates, officers, directors or their respective officers or directors, should be discovered by Parent which employees that should be set forth in an amendment or a supplement to the Registration Proxy Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in so that the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in would not include any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement misstatement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, then the Company shall promptly inform Parent. The Company New PubCo and SPAC of such information, event or circumstance.
(v) New PubCo or SPAC, as applicable, shall make all necessary filings, as required for itself, with respect to the Transactions under the Securities Act, the Exchange Act and applicable “blue sky” laws and any rules and regulations thereunder.
(vi) Each of SPAC and New PubCo agrees to use commercially reasonable efforts to promptly correct any furnish to the other Party and its Representatives all information provided by it for use in the Registration Statement (within its possession concerning itself, its Subsidiaries, officers, directors, managers, stockholders, and other related materials) if and to the extent that equityholders, as well as information regarding such information is determined to have become false other matters as may be reasonably necessary or misleading in any material respect advisable or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC may be reasonably requested in connection with the Merger Registration Statement, Proxy Statement, a Current Report on Form 8-K pursuant to the Exchange Act in connection with the Transactions, or any other statement, filing, notice or application made by or on behalf of SPAC or the other transactions contemplated by this Agreement shall comply as Company to form and substance any regulatory authority (including NASDAQ) in all material respects connection with the applicable requirements of the Securities Act and the Exchange ActTransactions.
Appears in 1 contract
Sources: Business Combination Agreement (Rose Hill Acquisition Corp)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following the date execution and delivery of this Agreement, Parent Agreement and the Company shall use commercially reasonable efforts to jointly availability of the Financial Statements and the Interim Financial Statements, Modern Media shall, in accordance with this Section 5.10, prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent and file with the SEC, pursuant to which in preliminary form, a proxy statement in connection with the offer Transactions and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus Offer (as amended or supplemented, the “Proxy Statement”) and provide its stockholders with the opportunity for up to 20,700,000 shares of Modern Media Common Stock (the “Offering Shares”) to be redeemed in conjunction with a stockholder vote on the Transactions, such proxy to be sent to the stockholders of Parent Modern Media relating to the Modern Media Common Stockholders Meeting in definitive form, all in accordance with and as required by Modern Media’s Organizational Documents, any related agreements with Modern Media, Modern Media Sponsor and its Affiliates, applicable Law and any applicable rules and regulations of the CompanySEC and NASDAQ. Pursuant to Without limitation, in the Proxy Statement, Modern Media shall (i) Parent shall solicit proxies from Parent’s stockholders holders of Modern Media Common Stock and Modern Media to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) Modern Media Common Stockholders Meeting in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders approval of the Capital Stock Transactions pursuant to Section 251 of the DGCL, and (B) any other proposals the Parties deem necessary or desirable to consummate the Transactions (collectively, the “Transaction Proposals”), and (ii) file with the SEC financial and other information about the Transactions in accordance with the Company Organizational Documents, the Laws Regulation 14A of the State Exchange Act. The Proxy Statement will comply as to form and substance with the applicable requirements of Delaware and the State of Nevada Exchange Act and the rules and regulations thereunder. As promptly as practicable following the execution and delivery of this Agreement, PubCo shall prepare and file with the SEC and Nasdaq, a registration statement on Form F-4 (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary amended or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectivelysupplemented, the “Company Stockholder Approval MattersRegistration Statement”), in which the Proxy Statement shall be included, pursuant to which the PubCo Shares and PubCo Warrants (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company PubCo Shares issuable upon the exercise of such PubCo Warrants but in each case other than shares of Modern Media Common Stock held by Modern Media Sponsor) to be issued to the holders of Modern Media Common Stock, Modern Media Rights and Modern Media Warrants, as applicable, pursuant to the Merger shall be registered for issuance under the Securities Act. In addition, PubCo shall use commercially reasonable efforts to (i) cause register the issuance and resale of the PubCo Shares to be issued to the Company Shareholders and the Modern Media Sponsor on the Registration Statement when filed and if not so registered, the PubCo agrees that, within forty-five (45) calendar days after the consummation of Closing it shall file with the SEC to comply in all material respects with all legal requirements applicable thereto, (at PubCo’s sole cost and (iiexpense) respond as promptly as reasonably practicable to a registration statement registering such resale and resolve all comments received from the SEC concerning the Registration Statement. Parent PubCo shall use its commercially reasonable efforts to (i) cause have the Registration Statement to be declared effective under the Securities Act as promptly soon as practicable and after the filing thereof.
(iib) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes shall have become effective, (i) Parent Modern Media shall distribute mail the Proxy Statement to its stockholdersholders of Modern Media Common Stock of record, and, pursuant thereto, shall call as of the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) record date to be established by the board of directors of Modern Media. Each of the Company and Modern Media shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it such Party and its Affiliates to the other Party, and provide such other assistance, as may be reasonably be requested by Parent in connection with such actions the preparation, filing and distribution of the Proxy Statement and the preparation Registration Statement, and the Proxy Statement and Registration Statement shall include all information reasonably requested by such other Party to be included therein. Each of the Company and Modern Media shall promptly notify the other upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement or Registration Statement and shall provide the other with copies of all correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand. Each of the Company and Modern Media shall use its reasonable best efforts to respond as promptly as reasonably practicable to any comments from the SEC with respect to the Proxy Statement.
(bc) No Prior to filing ofwith the SEC or mailing to Modern Media’s Stockholders, Modern Media and PubCo will make available to the Company drafts of the Proxy Statement, and the Registration Statement, both preliminary and final, and will provide the Company with a reasonable opportunity to comment on such drafts, shall consider in good faith and all reasonable additions, deletions or changes suggested by the Company in connection therewith. Neither Modern Media nor PubCo shall file any such documents with the SEC (including response to any comments from the SEC with respect thereto) without prior notice the Company. Modern Media and PubCo will advise the Company promptly after receipt of notice thereof, of (i) the time when each of the Proxy Statement and the Registration Statement have been filed, (ii) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act, (iii) in the event the preliminary Proxy Statement or the Registration Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC, (iv) the filing of any supplement or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent without the approval of the Company Statement, (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of v) the issuance of any stop order, of order by the suspension of the qualification of the Parent Common Stock to be issued or issuable SEC with respect to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdictionRegistration Statement, or of (vi) any request by the SEC for amendment of the Proxy Statement or the Registration Statement or Statement, (vii) any comments thereon and responses thereto or requests by from the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect relating to the Proxy Statement or the Registration Statement and responses thereto, or (viii) requests by the SEC for additional information. Modern Media and PubCo shall promptly respond to any SEC comments on the Proxy Statement and the Registration Statement and each shall use its reasonable best efforts to have the Proxy Statement cleared by the SEC under the Exchange Act, and the Registration Statement declared effective by the SEC under the Securities Act, as soon after filing as practicable; provided, that prior to responding to any comments or material requests from the SEC, Modern Media will make available to the Company drafts of any such response and provide the Company with a reasonable opportunity to comment on such drafts (including the proposed final version of such document or response).
(d) If at any time prior to the Modern Media Common Stockholders Meeting there shall be discovered any information that should be set forth in an amendment or supplement to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, so that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall or the Registration Statement, as applicable, would not contain include any untrue statement misstatement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) Modern Media or PubCo, as applicable, shall promptly transmit to its stockholders an amendment or supplement to the time Proxy Statement or the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meetingcontaining such information. If, at any time prior to the Merger Effective Time, the Company discovers any information, event or circumstance relating to the Company, Group Companies or any of their respective officers Affiliates, officers, directors or directors, should be discovered by the Company employees that should be set forth in an amendment or a supplement to the Proxy Statement or the Registration Statement so that the Proxy Statement or the Registration Statement, as applicable, would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, then the Company shall promptly inform Modern Media or PubCo, as applicable, of such information, event or circumstance.
(e) Modern Media and PubCo shall make all necessary filings with respect to the Transactions under the Securities Act, the Exchange Act and applicable “blue sky” laws and any rules and regulations thereunder.
(f) The Company shall use its commercially reasonable efforts to promptly provide Modern Media and PubCo with all information concerning the Group Companies reasonably requested by Modern Media for inclusion in the Proxy Statement, the Company shall promptly inform ParentRegistration Statement and any amendment or supplement to the Proxy Statement or the Registration Statement (if any). The Company shall promptly correct any information provided by it for use in cause the Registration Statement (officers and other related materials) if employees of the Group Companies to be reasonably available to Modern Media, PubCo and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC their counsel in connection with the Merger drafting of the Proxy Statement and the Registration Statement and responding in a timely manner to comments on the Proxy Statement and the Registration Statement from the SEC. The Company shall provide to Modern Media and PubCo the audited consolidated balance sheet and related audited statements of operations and cash flows of the Company and its Subsidiaries for the fiscal year ended December 31, 2018 no later than March 31, 2019.
(g) Modern Media shall not terminate or withdraw the Offer other than in connection with the valid termination of this Agreement in accordance with ARTICLE VIII. Modern Media shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC, NASDAQ or the other transactions respective staff thereof that is applicable to the Offer. Nothing in this Section 5.10(g) shall (i) impose any obligation on Modern Media to extend the Offer beyond the Outside Date, or (ii) be deemed to impair, limit or otherwise restrict in any manner the right of Modern Media to terminate this Agreement in accordance with ARTICLE VIII.
(h) The Company will use its best efforts to cause its independent auditors to cooperate with the Parties in connection with the Transaction, including the preparation of the Proxy Statement and Registration Statement and will use its best efforts to obtain the consents of its independent auditors for use of their reports on the audited financial statements of the Company and to references to such independent auditors as experts in any Proxy Statement, Registration Statement or marketing material contemplated by this Agreement the Transaction.
(i) Modern Media and PubCo shall comply use its best efforts to (i) cause the PubCo Shares to be issued to the Company Shareholders as provided in ARTICLE II to form be approved for listing on NASDAQ upon issuance, and substance in (ii) make all material respects necessary and appropriate filings with NASDAQ and undertake all other steps reasonably required prior to the applicable requirements of the Securities Act and the Exchange ActClosing to effect such listing.
Appears in 1 contract
Sources: Business Transaction Agreement (Modern Media Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution and delivery of this Agreement, Parent and (i) Holdco, the Company and SPAC shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments theretoand, after delivery of the “Registration Statement”) to be filed by Parent PCAOB Financials, Holdco shall file with the SEC, pursuant to which SEC the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplementedsupplemented from time to time, the “Proxy Statement/Prospectus”) to be sent to the stockholders of Parent and of the Company. Pursuant SPAC Stockholders relating to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters SPAC Stockholders (the “Parent SPAC Stockholders’ Meeting”) in favor for the purpose of (A) soliciting proxies from SPAC Stockholders for the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine matters to be necessary or appropriate acted upon at the SPAC Stockholders’ Meeting and providing the public stockholders an opportunity in order accordance with the SPAC Organizational Documents to effect have their shares of SPAC Common Stock redeemed by tendering them not later than 5:00 p.m. Eastern Time on the Merger and date that is two Business Days prior to the other transactions contemplated by this Agreement date of the SPAC Stockholders’ Meeting (collectively, the “Parent ProposalsRedemption”) in conjunction with the stockholder vote on the SPAC Proposals and (ii) Holdco, the Company and SPAC shall solicit proxies from the Company’s stockholders to vote at the special meeting jointly prepare and, after delivery of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or therebyPCAOB Financials, including the Merger, by the holders of the Capital Stock in accordance Holdco shall file with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) a registration statement on Form F-4 or such other matters applicable form as the Company and Parent shall hereafter mutually determine SPAC may agree (as amended or supplemented from time to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectivelytime, the “Company Stockholder Approval MattersRegistration Statement”), and (C) in which the adjournment Proxy Statement/Prospectus will be included, in connection with the registration under the Securities Act of the Company Stockholders’ Meeting, if necessary or desirable Holdco Ordinary Shares and Holdco Warrants to be issued in the reasonable determination of the CompanyMerger. Parent and the Company Each Party shall use commercially its reasonable best efforts to (i) cause the Registration Statement when filed and the Proxy Statement/Prospectus to comply with the SEC applicable rules and regulations promulgated by the SEC, including providing any necessary opinions of counsel, to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause have the Registration Statement to be declared effective under the Securities Act as promptly as practicable after such filing, and (ii) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Each of Holdco, the Company and SPAC shall furnish all information as may be reasonably requested by the other Parties in connection with any such action and the preparation, filing and distribution of the Registration Statement, the Proxy Statement/Prospectus, a Report on Form 6-K pursuant to the Exchange Act in connection with the Transactions and any other statement, filing, notice or application made by or on behalf of Holdco or SPAC to any regulatory authority (including Nasdaq) in connection with the Transactions (the “Transactions Filings”); provided, however, that no Party shall use any such information for any purposes other than those contemplated by this Agreement unless such Party obtains the prior written consent of the other. SPAC also agrees to use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the Transactions, and the Company and Holdco shall furnish all information concerning the Company, Holdco, Merger Sub and the Company Subsidiaries as may be reasonably requested in connection with any such action; provided that, without the prior written consent of the Company and Holdco, SPAC shall not use any such information for any purposes other than to obtain necessary state securities law or “Blue Sky” permits and approvals.
(b) As promptly as practicable after the Registration Statement becomes shall have become effective, (i) Parent SPAC shall distribute use its reasonable best efforts to cause the Proxy Statement Statement/Prospectus to its stockholders, and, pursuant thereto, shall call be mailed to the Parent SPAC Stockholders as of the record date for the SPAC Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware LawMeeting. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation of the Registration Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent without the approval of the Company (such approval not to be unreasonably withheldto, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments the Proxy Statement/Prospectus will be made (in each case including documents incorporated by reference therein) by SPAC, the Company or Holdco without providing the other, to the extent not prohibited by applicable Law, with a reasonable opportunity to review and comment thereon and responses thereto each Party shall give reasonable and good faith consideration to any comments made by any other Party and their counsel. To the extent not prohibited by applicable Law, each of SPAC, the Company and Holdco will be given a reasonable opportunity to participate in the response to any SEC comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with SPAC, the Company or requests Holdco or their counsel in any discussions or meetings with the SEC. SPAC shall comply with all applicable rules and regulations promulgated by the SEC for additional information. Each SEC, any applicable rules and regulations of Parent Nasdaq, SPAC Organizational Documents, and this Agreement in the preparation, filing and distribution of the Proxy Statement/Prospectus, any solicitation of proxies thereunder, the calling and holding of the SPAC Stockholders’ Meeting and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included thereinRedemption.
(c) Parent shall use its reasonable best efforts If at any time prior to ensure that the Merger Effective Time, any information supplied relating to SPAC, the Company or Holdco or any of their respective affiliates, directors or officers, should be discovered by Parent for inclusion SPAC, the Company or Holdco which is required to be set forth in an amendment or supplement to either the Registration Statement and or the Proxy Statement shall Statement/Prospectus, so that either such document would not contain include any untrue statement misstatement of a material fact or fail 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 are made, not misleading at misleading, the Party that discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the SPAC Stockholders.
(id) Each of SPAC, the time Company and Holdco will advise the other Parties promptly after it receives any oral or written request by the SEC for amendment of the Proxy Statement/Prospectus or the Registration Statement is declared effectiveStatement, (ii) as applicable, or comments thereon and responses thereto, any oral or written comments or requests in relation to the time SPAC Stockholders’ Meeting or the Redemption, or requests by the SEC for additional information and each Party will promptly provide the other with copies of any written communication between it or any of its Representatives, on the one hand, and the SEC, any state securities commission or their respective staff, on the other hand, with respect to the Proxy Statement Statement/Prospectus, the Registration Statement, the Exchange, the Merger, the SPAC Stockholders’ Meeting or the Redemption. SPAC, the Company and Holdco shall use their respective reasonable best efforts, after consultation with each other, to resolve all such requests or comments with respect to the Proxy Statement/Prospectus, the Registration Statement, the SPAC Stockholders’ Meeting or the Redemption, as applicable, as promptly as reasonably practicable after receipt thereof.
(or any amendment thereof or supplement theretoe) is first mailed to stockholders Without limiting the generality of Parent the foregoing, each of SPAC, the Company and Holdco shall cooperate with each other in the preparation of each of the Proxy Statement/Prospectus and the stockholders Registration Statement, and each of the Company and SPAC shall furnish Holdco with all information concerning it and its affiliates as the providing Party (iiiafter consulting with counsel) may deem reasonably necessary or advisable in connection with the preparation of the Transactions Filings, including the Proxy Statement/Prospectus or the Registration Statement, as applicable.
(f) SPAC, the Company and Holdco shall notify each other promptly of the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to when the Registration Statement has become effective, of the issuance of any stop order or suspension of the Proxy Statement, Parent shall promptly inform qualification of the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false Holdco Ordinary Shares or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC Holdco Warrants issuable in connection with the Merger for offering or sale in any jurisdiction, or of the receipt of any comments from the SEC or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements staff of the Securities Act SEC and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied of any request by the Company SEC or the staff of the SEC for inclusion in the Registration Statement and amendments or supplements to the Proxy Statement shall not contain any untrue statement of a material fact Statement/Prospectus or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Actadditional information.
Appears in 1 contract
Sources: Business Combination Agreement (DD3 Acquisition Corp. II)
Proxy Statement; Registration Statement. (a) As soon promptly as practicable after the execution of this Agreement and receipt of the PCAOB Audited Financials and the Unaudited Interim Financial Statements, (i) HCAC (with the assistance and cooperation of the Company as reasonably practicable requested by HCAC) shall prepare and file with the SEC a joint information statement/proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of HCAC and to the shareholders of the Company (A) as an information statement relating, with respect to the Company’s stockholders, to the action to be taken by shareholders of the Company pursuant to the Written Consent or by vote at a Company Shareholders Meeting and (B) as a proxy statement, with respect to HCAC’s stockholders, in which HCAC shall solicit proxies from HCAC’s stockholders to vote at the special meeting of HCAC’s stockholders called for the purpose of voting on the following matters (the date “HCAC Stockholders’ Meeting”) in favor of (1) the approval and adoption of this AgreementAgreement and the Mergers, Parent (2) the issuance of HCAC Common Stock as contemplated by this Agreement and the Subscription Agreements, (3) the approval and adoption of the second amended and restated HCAC Certificate of Incorporation as set forth on Exhibit D, (4) the approval and adoption of an equity incentive plan, in form and substance reasonably acceptable to HCAC and the Company that provides for grant of awards to employees and other service providers of the Surviving Entity and its Subsidiaries in the form of options, restricted shares, restricted share units or other equity-based awards based on HCAC Common Stock with a total pool of awards of HCAC Common Stock not exceeding ten percent (10%) of the aggregate number of the sum of (x) shares of HCAC Common Stock outstanding at the Closing and (y) securities convertible into HCAC Common Stock, with an annual “evergreen” increase of not more than five percent (5%) of the shares of HCAC Common Stock outstanding as of the day prior to such increase, (5) the approval and adoption of an employee stock purchase plan, in form and substance reasonably acceptable to HCAC and the Company, that provides for grant of purchase rights with respect to HCAC Common Stock to employees of the Surviving Entity and its Subsidiaries with a total pool of shares of HCAC Common Stock not exceeding one and one half percent (1.5%) of the aggregate number of the sum of (x) shares of HCAC Common Stock outstanding at the Closing and (y) securities convertible into HCAC Common Stock, with an annual “evergreen” increase of one percent (1%) of the shares of HCAC Common Stock outstanding as of the day prior to such increase, and (6) any approval of other proposals the parties deem necessary to effectuate the Merger and the other Transactions (collectively, the “HCAC Proposals”), and (ii) HCAC shall use commercially reasonable efforts to jointly prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent HCAC Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent issued to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment shareholders of the Company Stockholders’ Meetingpursuant to this Agreement, if necessary or desirable in the reasonable determination including, for avoidance of the Companydoubt, any shares of HCAC Common Stock to be issued pursuant to Section 3.06 of this Agreement. Parent HCAC and the Company each shall use commercially their reasonable best efforts to (i) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent each of the Company and HCAC shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call . Each of HCAC and the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent HCAC or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . HCAC and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent HCAC Common Stock to be issued or issuable to the holders shareholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent HCAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure HCAC represents that the information supplied by Parent HCAC for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and HCAC, (iii) the time of each of the Parent Stockholders’ Meeting and the Company HCAC Stockholders’ Meeting, and (iv) the Effective Time. If, at any time prior to the Effective Time, any event or circumstance relating to Parent HCAC, First Merger Sub, or Second Merger Sub, or their respective officers or directors, should be discovered by Parent HCAC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent HCAC shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ HCAC is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and HCAC, (iii) the time of the Parent Stockholders’ Meeting and the Company HCAC Stockholders’ Meeting, and (iv) the Effective Time. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsHCAC. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
Appears in 1 contract
Sources: Merger Agreement (Hennessy Capital Acquisition Corp IV)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the PCAOB Audited Financials, Parent PC3 and the Company shall use their respective commercially reasonable efforts to jointly prepare and PC3 shall file with the SEC a registration statement on Form S-4 with respect to the NewPubco Common Stock and NewPubco Warrants to be offered and issued in connection with the Merger (together with all amendments thereto, the “Registration Statement”) to be filed by Parent with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act), which Registration Statement shall include a joint proxy statement/prospectus statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and PC3 Shareholders with respect to the extraordinary general meeting of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters PC3 Shareholders (the “Parent StockholdersPC3 Shareholders’ Meeting”) in favor of (A) to be held to consider the approval and adoption of (1) this Agreement and the Ancillary Agreements and the transactions contemplated hereby or therebyAgreement, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions Transactions, (2) the Share Exchange, (3) the issuance of NewPubco Common Stock as contemplated by this Agreement Agreement, (4) the Equity Incentive Plan and (5) any other proposals the parties deem necessary or desirable to effectuate the Transactions (collectively, the “Parent PC3 Proposals”) and (ii) ). The Company shall use commercially reasonable efforts to furnish all information concerning the Company shall solicit proxies from as PC3 may reasonably request in connection with such actions and the Company’s stockholders to vote at the special meeting preparation of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption Proxy Statement and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or therebyRegistration Statement, including updates to the Merger, by Required Financials as required prior to the holders effective date of the Capital Stock in accordance Registration Statement to address subsequent interim periods and to ensure compliance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyPCAOB. Parent PC3 and the Company each shall use their commercially reasonable efforts to (i) cause the Proxy Statement and the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to to, and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after filing with the SEC and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, PC3 shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of NewPubco Common Stock, in each case to be issued in connection with this Agreement. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute finalization of the Proxy Statement to its stockholdersand effectiveness of the Registration Statement, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute mail the Proxy Statement to the Company’s stockholders, and, pursuant thereto, stockholders and PC3 shall call mail the Proxy Statement to the PC3 Shareholders. Each of PC3 and the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent PC3 or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . PC3 and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives within forty-eight (48) hours following the date they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock PC3 Class A Ordinary Shares to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent PC3 and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure PC3 represents that the information supplied by Parent PC3 for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and PC3 Shareholders, (iii) the time of each of the Parent Stockholders’ Meeting and the Company StockholdersPC3 Shareholders’ Meeting. If, at any time prior to and (iv) the Merger Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Merger Effective Time, any event or circumstance relating to PC3, NewPubco or Merger Sub, or their respective officers or directors, should be discovered by PC3 which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, PC3 shall, within twenty-four (24) hours following the date of occurrence of such event or the date on which PC3 had knowledge of such event, inform the Company. All documents that PC3 is responsible for filing with the SEC in connection with the Merger or the other Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and PC3 Shareholders, (iii) the time of the Parent Stockholders’ Meeting and the Company StockholdersPC3 Shareholders’ Meeting, and (iv) the Merger Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Merger Effective Time, any event or circumstance relating to the Company, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly shall, within twenty-four (24) hours following the date of occurrence of such event or the date on which Company had knowledge of such event, inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsPC3. All documents that the Company is responsible for filing with the SEC in connection with the Merger Share Exchange or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(e) If, in connection with the preparation and filing of the Registration Statement (including the Proxy Statement contained therein) or the SEC’s review thereof, the SEC requests or requires that a Tax opinion with respect to the U.S. federal income tax consequences of the Transactions be prepared and submitted, the parties shall deliver to counsel customary Tax representation letters satisfactory to such counsel, dated and executed as of the date such relevant filing shall have been declared effective by the SEC and such other date(s) as determined to be reasonably necessary by such counsel in connection with the preparation and filing of such Tax opinion. Notwithstanding anything to the contrary in this Agreement, none of PC3, the Company or their respective Tax advisors are obligated to provide any opinion that the Transactions contemplated by this Agreement qualify for the Intended Tax Treatment, other than a customary opinion regarding the material accuracy of any disclosure regarding U.S. federal income tax considerations of the Transactions included in the Registration Statement (including the Proxy Statement contained therein) as may be required to satisfy applicable rules and regulations promulgated by the SEC, nor will a Tax opinion by any party’s advisors be a condition precedent to the Transactions.
Appears in 1 contract
Sources: Business Combination Agreement (Perception Capital Corp. III)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution and delivery of this Agreement, Parent Cartesian, PubCo and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments theretoprepare, and as promptly as practicable after the “Registration Statement”) to be filed by Parent delivery of the Company Financials, PubCo shall file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include (i) a joint proxy statement/prospectus statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and Cartesian Shareholders soliciting proxies in favor of the Company. Pursuant to Cartesian Proposals from the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at Cartesian Shareholders in connection with the special extraordinary general meeting of Parent’s stockholders called for the purpose of voting on the following matters Cartesian Shareholders (the “Parent StockholdersCartesian Shareholders’ Meeting”) in favor to be held to consider approval and adoption of (A) the approval and adoption of this Agreement and the Ancillary Agreements Transactions (including the Merger and the transactions contemplated hereby or thereby, including entry into the Plan of Merger), and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be Parties deem necessary or appropriate in order to effect effectuate the Merger and the other transactions contemplated by this Agreement Transactions (collectively, the “Parent Cartesian Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting a registration statement on the following matters Form F-4 (together with all amendments thereto, the “Company Stockholders’ MeetingRegistration Statement”) in favor of (A) which the adoption and approval of this Agreement and Proxy Statement shall be included as a prospectus, in connection with the Ancillary Agreements and registration under the transactions contemplated hereby or thereby, including the Merger, by the holders Securities Act of the Capital Stock PubCo Ordinary Shares to be issued pursuant to, and in accordance with the Company Organizational Documentsconnection with, the Laws this Agreement. Each of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and NasdaqCartesian, (B) such other matters as the Company and Parent PubCo shall hereafter mutually determine to furnish all information concerning it as may reasonably be necessary or appropriate required in order to effect the Merger connection with such actions and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment preparation of the Company Stockholders’ MeetingProxy Statement and Registration Statement, if necessary or desirable in including updates to the reasonable determination financial statements as required prior to the effective date of the CompanyRegistration Statement to address subsequent interim periods. Parent Cartesian, PubCo and the Company each shall use commercially their respective reasonable best efforts to (i1) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii2) respond as promptly as reasonably practicable to and resolve all comments received from the SEC or its staff concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (i3) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after filing with the SEC, and (ii4) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, Cartesian shall take all or any action required under any applicable federal or state securities Laws in connection with the issuance of the Cartesian Ordinary Shares, in each case to be issued or issuable pursuant to, and in connection with, this Agreement. As promptly as practicable practicable, and in no event later than five (5) Business Days after the effective time of the Registration Statement becomes effectiveStatement, (i) Parent Cartesian shall distribute cause the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement be mailed to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation of the Registration StatementCartesian Shareholders.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent PubCo, Cartesian or the Company without the approval of the Company other Parties (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is except as required by applicable Law. PubCo, Cartesian or the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock PubCo Ordinary Shares to be issued or issuable to the holders of Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC or its staff for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC or its staff for additional information. Each of Parent PubCo, Cartesian and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld withheld, conditioned or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts Cartesian hereby represents and warrants to ensure the Company that the information supplied by Parent Cartesian for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Cartesian Shareholders, (iii) the time of each of the Parent Stockholders’ Meeting and the Company StockholdersCartesian Shareholders’ Meeting. If, at any time prior to the and (iv) Merger Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Merger Effective Time, any event or circumstance relating to Cartesian, or its officers or directors, should be discovered by Cartesian which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Cartesian shall promptly inform the Company. All documents that C▇▇▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) Each of the Company and PubCo hereby represents and warrants to Cartesian that the information supplied by the Company and PubCo for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and Cartesian Shareholders, (iii) the time of the Parent Stockholders’ Meeting and the Company StockholdersCartesian Shareholders’ Meeting, and (iv) the Merger Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Merger Effective Time, any event or circumstance relating to PubCo, the CompanyCompany or any Company Subsidiary, or their respective officers officers, directors or directorsmanagers, should be discovered by the Company that or PubCo which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company and PubCo shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsCartesian. All documents that the Company is responsible for filing with the SEC in connection with filing of the Merger or Registration Statement and the other transactions contemplated by this Agreement shall Proxy Statement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the Required Financials, Parent (i) SPAC and the Company shall use commercially reasonable efforts prepare and SPAC shall file with the SEC a proxy statement (as amended or supplemented, the “Proxy Statement”) to jointly prepare be sent to the stockholders of SPAC with respect to the special meeting of SPAC’s stockholders (the “SPAC Stockholders’ Meeting”) to be held to consider the (A) approval and adoption of this Agreement and the Transactions as a business combination, (B) the adoption and approval of the Merger, (C) the issuance of shares of New SPAC Common Stock in connection with the Merger, (D) the amendment and restatement of the SPAC Certificate of Incorporation in the form of the SPAC Second Amended and Restated Certificate of Incorporation, (E) the election of members of the SPAC Board in accordance with Section 2.05, (F) the adoption and approval of any other proposals as the SEC (or staff member thereof) or NYSE may indicate are necessary in its comments to the Proxy Statement, the Registration Statement or correspondence related thereto, (G) the adoption and approval of any other proposals as reasonably agreed by SPAC and the Company to be necessary or appropriate in connection with the Transactions and (H) the adjournment of the SPAC Stockholders Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (such proposals in (A) through (H), together, the “SPAC Proposals”), and (ii) SPAC and the Company shall prepare, and SPAC shall file with the SEC, a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent New SPAC Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) that constitute the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, Aggregate Transaction Consideration and (B) any approval held by the stockholders of other proposals SPAC immediately prior to the Effective Time. Without the prior written consent of the Company and Parent shall hereafter mutually determine (not to be necessary unreasonably withheld, conditioned or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectivelydelayed), the “Parent Proposals”SPAC Proposals shall be the only matters (other than procedural matters) and (ii) the Company that SPAC shall solicit proxies from the Companypropose to be acted on by SPAC’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company SPAC Stockholders’ Meeting”) in favor of (A) , as adjourned or postponed. The Registration Statement will comply as to form and substance with the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders applicable requirements of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada Exchange Act and the rules and regulations thereunder. The Company shall furnish all information concerning the Company as SPAC may reasonably request in connection with such actions and the preparation of the SEC Proxy Statement and NasdaqRegistration Statement, (B) such other matters including updates to the Required Financials as required prior to the effective date of the Registration Statement to address subsequent interim periods and to ensure compliance with PCAOB or AICPA requirements, as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Companycase may be. Parent SPAC and the Company each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (iii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after filing with the SEC and (iiiii) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after Prior to the effective date of the Registration Statement becomes effectiveStatement, (i) Parent SPAC shall distribute take any and all action required under any applicable federal or state securities laws in connection with the issuance of shares of New SPAC Common Stock, in each case to be issued or issuable to the stockholders of the Company in connection with this Agreement. SPAC shall cause the Proxy Statement to be mailed to its stockholdersstockholders of record, and, pursuant thereto, shall call as of the Parent Stockholders’ Meeting record date to be established by the SPAC Board in accordance with Nevada Law Section 7.02(a), as promptly as practicable (but in no event later than five (5) Business Days except as otherwise required by applicable Law) following the earlier to occur of: (x) in the event the Registration Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; or (y) in the event the Registration Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC and promptly (iiand in no event later than the fifth (5th) Business Day following the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting date of this Agreement) commence a “broker search” in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation Rule 14a-12 of the Registration StatementExchange Act.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent SPAC or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . SPAC and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, (i) of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, (ii) of the issuance of any stop order, (iii) of the suspension of the qualification of the Parent New SPAC Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or (iv) of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or (v) written or oral comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent SPAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure SPAC represents that the information supplied by Parent SPAC for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of SPAC and the Company and Company, (iii) the time of each of the Parent Stockholders’ Meeting and the Company SPAC Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to SPAC or Merger Sub, or their respective officers or directors, should be discovered by SPAC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, SPAC shall promptly inform the Company. All documents that SPAC is responsible for filing with the SEC in connection with the Merger or the other Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent SPAC and the stockholders of the Company and Company, (iii) the time of the Parent Stockholders’ Meeting and the Company SPAC Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform ParentSPAC. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All Any documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(e) If, at any time prior to the SPAC Stockholders’ Meeting, there shall be discovered any information that should be set forth in an amendment or supplement to the Registration Statement so that the Registration Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, SPAC and the Company shall prepare and SPAC shall promptly file an amendment or supplement to the Registration Statement containing such information. If, at any time prior to the Closing, the Company discovers any information, event or circumstance relating to the Company, its business or any of its Affiliates, officers, directors or employees that should be set forth in an amendment or a supplement to the Registration Statement so that the Registration Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, then the Company shall promptly inform SPAC of such information, event or circumstance.
(f) If, in connection with the preparation and filing of the Registration Statement (including the Proxy Statement contained therein) or the SEC’s review thereof, the SEC requests or requires that a Tax opinion with respect to the U.S. federal income tax consequences of the Transactions be prepared and submitted, the parties shall deliver to counsel tasked with preparing such Tax opinion customary Tax representation letters satisfactory to such counsel, dated and executed as of the date such relevant filing shall have been declared effective by the SEC and such other date(s) as determined to be reasonably necessary by such counsel in connection with the preparation and filing of such Tax opinion. Notwithstanding anything to the contrary in this Agreement, none of SPAC, the Company or their respective Tax advisors are obligated to provide any opinion that the Transactions qualify for the Merger Intended Tax Treatment, other than a customary opinion regarding the material accuracy of any disclosure regarding U.S. federal income tax considerations of the Transactions included in the Registration Statement (including the Proxy Statement contained therein) as may be required to satisfy applicable rules and regulations promulgated by the SEC, nor will a Tax opinion by any party’s advisors be a condition precedent to the Transactions.
Appears in 1 contract
Sources: Business Combination Agreement (Concord Acquisition Corp III)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following the date of this Agreement, Parent and the Company parties shall use commercially reasonable efforts to jointly prepare and cause to be filed with the SEC (i) a registration proxy statement on Form S-4 relating to the Aspen Stockholder Meeting (together with all amendments and supplements thereto, the “Proxy Statement/Prospectus”) in preliminary form and (ii) a Registration Statement on Form S-4 which shall include the Proxy Statement/ Prospectus (together with all amendments and supplements thereto, the “Registration Statement”) relating to be filed by Parent with the SEC, pursuant to which the offer and sale/issuance registration of the shares of Parent Common Newco Stock comprising to be issued in connection with the Aggregate Merger Consideration shall be registered under Merger. Each party agrees, as to itself and its Subsidiaries, that the Securities Act, which Proxy Statement/Prospectus and the Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements the applicable theretoprovisions of the 1933 Act and the 1934 Act and other Applicable Law.
(b) Each of the parties shall use its reasonable best efforts to (i) have, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from following the filing thereof, the Proxy Statement/Prospectus cleared by the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause and the Registration Statement to be declared effective under the Securities Act as promptly as practicable and 1933 Act, (ii) keep the Registration Statement effective as long as is necessary to consummate the TransactionsMerger and (iii) to respond as promptly as reasonably practicable to any comments or requests for additional information from the SEC with respect to the Proxy Statement/Prospectus or the Registration Statement, as applicable. As Each of the parties shall, as promptly as practicable after the receipt thereof, provide the other parties with copies of any written comments, and advise the other party of any oral comments, with respect to the Proxy Statement/Prospectus and the Registration Statement becomes effectivereceived by such party from the SEC, (i) Parent shall distribute including any request from the SEC for amendments or supplements to the Proxy Statement/Prospectus and the Registration Statement, and shall provide the other with copies of all material or substantive correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand. Notwithstanding the foregoing, prior to filing the Registration Statement (or any amendment or supplement thereto) or mailing the Proxy Statement/Prospectus (or any amendment or supplement thereto) or responding to its stockholders, and, pursuant any comments of the SEC with respect thereto, each of the parties shall call provide the Parent Stockholders’ Meeting other parties and its counsel a reasonable opportunity to review such document or response (including the proposed final version of such document or response) and consider in accordance with Nevada Law and (ii) good faith the Company shall distribute comments of the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent other party in connection with any such actions and document or response. None of the preparation parties or their respective Representatives shall agree to participate in any material or substantive meeting or conference (including by telephone) with the SEC, or any member of the staff thereof, in respect of the Registration Statement or the Proxy Statement/Prospectus unless it consults with the other parties in advance and, to the extent permitted by the SEC, allows the other parties to participate. Subject to Section 5.03, the Proxy Statement/Prospectus shall include the Aspen Board Recommendation.
(bc) No filing of, or amendment or supplement The parties shall make all necessary filings with respect to the Proxy Statement or Transactions under the Registration Statement will be made by Parent without 1933 Act and the approval 1934 Act and applicable state “blue sky” laws and the rules and regulations thereunder. Each of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent parties will advise the Companyother parties, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Newco Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement the Merger for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement Statement/Prospectus or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance information relating to Parent or Merger Subthe parties, or any of their respective Affiliates, officers or directors, directors should be discovered by Parent which a party that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent /Prospectus so that such information is determined to have become false or misleading in documents would not include any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement misstatement of a material fact or fail 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, at (i) the time party that discovers such information shall promptly notify the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any other parties and an appropriate amendment thereof or supplement thereto) is first mailed describing such information shall be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange ActAspen.
Appears in 1 contract
Sources: Transaction Agreement and Plan of Merger (Emerson Electric Co)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date delivery of this Agreementthe PCAOB Audited Financials by the Company to Parent, (i) Parent and the Company shall use commercially reasonable efforts prepare and file with the SEC a joint consent solicitation/proxy statement (as amended or supplemented, the “Proxy Statement”) to jointly be sent to Parent Stockholders soliciting proxies in favor of the Parent Proposals from such stockholders in connection with the special meeting of Parent’s stockholders (the “Parent Stockholders’ Meeting”) to be held to consider approval and adoption of (A) this Agreement and the Transactions and any separate or unbundled proposals as are required to implement the foregoing, (B) the issuance of New Parent Common Stock as contemplated by this Agreement and the Subscription Agreements, (C) the Parent Second Amended and Restated Certificate of Incorporation, (D) the Stock Incentive Plan and the ESPP, (E) the appointment of the directors of Parent in accordance with Section 2.05(b), (F) any other proposals as the SEC (or staff member thereof) may indicate are necessary in its comments to the Registration Statement or correspondence related thereto and (G) any other proposals the parties hereto deem necessary or appropriate to effectuate the Transactions (collectively, the “Parent Proposals”) and (ii) Parent shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered registration under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor Act of (A) the approval and adoption shares of New Parent Common Stock constituting the Aggregate Stock Consideration to be issued to the Company Members pursuant to this Agreement and (other than the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, Key Company Members) and (B) any approval the shares of other proposals New Parent Common Stock issuable upon exercise of the Exchanged Options or upon settlement of the Exchanged Units. The Company shall furnish all information concerning the Company and as Parent shall hereafter mutually determine to be necessary or appropriate may reasonably request in order to effect the Merger connection with such actions and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting preparation of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption Proxy Statement and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyRegistration Statement. Parent and the Company each shall use commercially their reasonable best efforts to (i1) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii2) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (i3) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after filing with the SEC and (ii4) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, Parent shall take all or any action required under any applicable federal or state securities Laws in connection with the issuance of shares of New Parent Common Stock, the Exchanged Options and or Exchanged Units, in each case to be issued or issuable to the Blocker Member and the Company Members pursuant to this Agreement. As promptly as practicable after the effective time of the Registration Statement becomes effectiveStatement, (i) Parent shall distribute the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute mail the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call Parent Stockholders and the Company Stockholders’ Meeting in accordance with Delaware Lawshall mail the Proxy Statement to the Company Members. The Each of Parent and the Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement. If, in connection with the preparation and filing of the Proxy Statement and Registration Statement, the SEC requires that a tax opinion or opinions be prepared and submitted by the respective tax counsel of the Company and/or Parent with respect to the Company Mergers (each, a “Company Merger Tax Opinion”) and/or with respect to the Blocker Mergers (each, a “Blocker Merger Tax Opinion”), (a) Parent, the Blocker, Blocker Member and the Company shall deliver to G▇▇▇▇▇▇▇▇ T▇▇▇▇▇▇, LLP and P▇▇▇ ▇▇▇▇▇▇▇▇ LLP, respectively, customary Tax representation letters satisfactory to its tax counsel, dated and executed as of the date the Proxy Statement and Registration Statement shall have been declared effective by the SEC and such other date(s) as determined reasonably necessary by such tax counsel in connection with the preparation and filing of the Proxy Statement and Registration Statement, and (b) the Company and/or Parent, as applicable, shall cause its respective tax counsel to render a Company Merger Tax Opinion and (c) the Company and/or Parent, as applicable, shall cause its respective tax counsel to render a Blocker Merger Tax Opinion; provided, however, that notwithstanding anything to the contrary herein, none of Parent, Blocker Member, the Blocker or the Company shall be required to furnish, or caused to be furnished by its respective tax counsel, any opinion regarding the qualification of the Blocker Mergers as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations thereunder.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is except as required by the SEC and United States securities Laws to be included thereinapplicable Law. Parent and the Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the New Parent Common Stock to be issued or issuable to the holders of Blocker Member and the Company Securities Members in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure represents that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent Stockholders and the stockholders of the Company and Members, (iii) the time of each of the Parent Stockholders’ Meeting Meeting, and (iv) the Second Company Stockholders’ Meeting. If, at any time prior to the Merger Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Second Company Merger Effective Time, any event or circumstance relating to Parent, the Merger Sub Entities or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. All documents that Parent is responsible for filing with the SEC in connection with the Mergers or the other Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent Stockholders and the stockholders of the Company and Members, (iii) the time of the Parent Stockholders’ Meeting Meeting, and (iv) the Second Company Stockholders’ MeetingMerger Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Second Company Merger Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing causing Parent to file with the SEC in connection with the Merger Mergers or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Sources: Business Combination Agreement (McAp Acquisition Corp)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date delivery of the PCAOB 2022 Audited Financials of this Agreement, Parent and Agreement from the Company to SPAC, (i) SPAC and shall use commercially reasonable efforts to jointly prepare and file with the SEC a registration statement on Form S-4 (together with all amendments theretothereto and including the proxy statement/prospectus included therein, the “Registration Statement”) to be filed by Parent in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent Domesticated SPAC Common Stock comprising (A) to be issued to the Aggregate Merger Consideration shall stockholders of the Company pursuant to this Agreement and the (B) the Domesticated SPAC Common Stock, the Domesticated SPAC Units, the Domesticated SPAC Warrants and the Domesticated SPAC Rights to be registered under issued upon the Securities Actconversion of the issued and outstanding SPAC Ordinary Shares, which SPAC Units, SPAC Warrants and SPAC Rights, respectively, pursuant to the Domestication. The Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders shareholders of Parent and of the Company. Pursuant SPAC relating to the Proxy Statement(A) with respect to SPAC’s shareholders, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of ParentSPAC’s stockholders called for the purpose of voting on the following matters (the “Parent StockholdersSPAC Shareholders’ Meeting”) in favor of (A) the to be held to consider approval and adoption of (1) this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B2) any approval the Domestication, (3) the issuance of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions Domesticated SPAC Common Stock as contemplated by this Agreement pursuant to the requirements of Nasdaq, (3) the second amended and restated SPAC Certificate of Incorporation as set forth on Exhibit C, (4) the Stock Incentive Plan and (5) any other proposals the parties deem necessary to effectuate the Transactions (collectively, the “Parent SPAC Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent SPAC and the Company each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, SPAC shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of Domesticated SPAC Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after finalization of the Registration Statement becomes effectiveProxy Statement, (i) Parent each of the Company and SPAC shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law . Each of SPAC and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent SPAC or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided. For the avoidance of doubt, howeverprior to filing with the SEC, that subject SPAC will make available to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis Company drafts of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information thatRegistration Statements, based on the advice of outside counsel to Parent, is required by the SEC Proxy Statement and United States securities Laws any other documents to be included thereinfiled with the SEC, both preliminary and final, and drafts of any amendment or supplement to the Registration Statement, Proxy Statement or such other document and will provide the Company with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. Parent SPAC and the Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Domesticated SPAC Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent SPAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure SPAC represents that the information supplied by Parent SPAC for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders the shareholders of Parent SPAC and the stockholders of the Company and Company, (iii) the time of each of the Parent Stockholders’ Meeting and the Company StockholdersSPAC Shareholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to SPAC or Merger Sub, or their respective officers or directors, should be discovered by SPAC which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, SPAC shall promptly inform the Company. All documents that SPAC is responsible for filing with the SEC in connection with the Merger or the other Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders shareholders of Parent SPAC and the stockholders of the Company and Company, (iii) the time of the Parent Stockholders’ Meeting and the Company StockholdersSPAC Shareholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange ActSPAC.
Appears in 1 contract
Sources: Business Combination Agreement (Aurora Technology Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable after the date of this Agreement, and in any event no later than thirty (30) days following the date of this Agreement, Parent, with Company’s cooperation, will prepare and cause to be filed with the SEC a proxy statement relating to the Parent Stockholders’ Meeting to be held in connection with the Parent Stockholder Approval Matters and other matters that may be mutually agreed upon between Parent and Company (together with any amendments thereof or supplements thereto, the “Proxy Statement”). Each of Parent and Company shall will use commercially reasonable efforts efforts: (i) to jointly cause the Proxy Statement to comply with the applicable rules and regulations promulgated by the SEC; and (ii) to promptly notify the other of, cooperate with each other with respect to and respond promptly to any comments of the SEC or its staff. Parent will cause the Proxy Statement to be mailed to Parent’s stockholders. Each of Parent and Company will promptly furnish the other party all information concerning such party, its Subsidiaries and stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 5.1(a). If either Parent or Company becomes aware of any information that should be disclosed in an amendment or supplement to the Proxy Statement, then such party: (i) will promptly inform the other party thereof; (ii) will provide the other party (and its counsel) with a reasonable opportunity to review and comment on any amendment or supplement to the Proxy Statement prior to it being filed with the SEC; (iii) will provide the other party with a copy of such amendment or supplement promptly after it is filed with the SEC; and (iv) will cooperate, if appropriate, in mailing such amendment or supplement to the stockholders of Parent.
(b) Within thirty (30) days following the Closing Date, Parent will prepare and file with the SEC a registration statement on Form S-4 S-3 (together with all amendments theretoor if Form S-3 is not available, the “Registration Statement”) to be filed by Parent with the SEC, pursuant to which the offer and sale/issuance such other form as may provide for a resale of the shares of Parent Common Stock comprising issued pursuant to Section 1.6 but with such registration obligations otherwise consistent with the Aggregate Merger Consideration shall be registered under requirements of this Section 5.1(b)), covering the Securities Actresale of the shares of Parent Common Stock issued pursuant to Section 1.6 (together with all amendments and supplements thereto, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplementedincluding post-effective amendments, all exhibits thereto and all material incorporated by reference therein, the “Proxy Registration Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall will use commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared effective under as soon as possible following the Securities Act as promptly as practicable and (ii) keep filing of the Registration Statement and be maintained effective as long as is necessary until the earliest to consummate occur of: (i) the Transactions. As promptly as practicable after second anniversary of the date the Registration Statement becomes is first declared effective, (i) Parent shall distribute the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and or (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish date that all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation of the Registration Statement.
(b) No filing of, or amendment or supplement shares of Parent Common Stock issued pursuant to the Proxy Statement or the Registration Statement will be made by Parent without the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed)Section 1.6 have actually been sold; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted have no obligation to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent will advise the Company, promptly after it receives notice thereof, of the time when have the Registration Statement has become declared effective or any supplement or amendment thereto has been filed, of unless and until the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock to be issued or issuable to the holders of Company Securities in connection Form 8-K Amendment is filed with this Agreement for offer or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon (and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that timely file the information supplied by Form 8-K Amendment). For not more than sixty (60) consecutive days or for a total of not more than ninety (90) days in any twelve (12) month period, Parent for inclusion may suspend the use of any prospectus included in the Registration Statement if Parent’s board of directors determines in good faith that such suspension is necessary to (x) delay the disclosure of material non-public information concerning Parent, the disclosure of which at the time is not, in the good faith opinion of Parent’s board of directors, in the best interests of Parent and its stockholders, or (y) amend or supplement the Proxy Registration Statement shall or the related prospectus so that the Registration Statement or prospectus will not contain any include an untrue statement of a material fact or fail omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in light the case of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements therein, prospectus in light of the circumstances under which they were made, not misleading, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
Appears in 1 contract
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement, Parent Newco and Concentric shall prepare and file the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent Proxy Statement with the SEC, pursuant to and Newco shall prepare and file the Registration Statement (in which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall Proxy Statement will be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”included) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational DocumentsSEC. Newco, the Laws of the State of Delaware NEXTLINK and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company Concentric shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the which Registration Statement. Parent , in the event of an Alternative Merger, shall use commercially reasonable efforts also register such other securities issued or assumed in the Mergerw or the Alternative Merger, as applicable, as is required by applicable law) to (i) cause the Registration Statement to be declared become effective under the Securities 1933 Act as promptly soon after such filing as practicable and (ii) to keep the Registration Statement effective as long as is necessary to consummate the TransactionsMergers. As The Proxy Statement shall include the recommendation of the Board of Directors of Concentric in favor of approval and adoption of this Agreement and the Mergers, except to the extent the Board of Directors of Concentric shall have withdrawn or modified its approval or recommendation of this Agreement as permitted by Section 7.2(b). NEXTLINK shall cause the Proxy Statement to be mailed to its stockholders, and Concentric shall cause the Proxy Statement to be mailed to its stockholders, in each case as promptly as practicable after the Registration Statement becomes effective. The parties shall promptly provide copies, (i) Parent shall distribute consult with each other and prepare written responses with respect to any written comments received from the SEC with respect to the Proxy Statement to its stockholders, and, pursuant thereto, shall call and the Parent Stockholders’ Meeting in accordance with Nevada Law Registration Statement and (ii) advise one another of any oral comments received from the Company shall distribute SEC. The Registration Statement and the Proxy Statement shall comply as to form in all material respects with the Company’s stockholders, and, pursuant thereto, shall call rules and regulations promulgated by the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions SEC under the 1933 Act and the preparation of the Registration Statement1934 Act, respectively.
(b) No filing ofNewco, or amendment or supplement NEXTLINK and Concentric shall make all necessary filings with respect to the Proxy Statement or Mergers and the Registration Statement will be made by Parent without transactions contemplated thereby under the approval of 1933 Act and the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in 1934 Act and applicable state blue sky laws and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC rules and United States securities Laws to be included thereinregulations thereunder. Parent Each party will advise the Companyother, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Newco Common Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement the Mergers for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld No amendment or delayed), any response to comments of the SEC with respect supplement to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement Statement, or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance correspondence with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC with respect thereto, shall be filed without the approval of Newco, NEXTLINK and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement Concentric, which approval shall not contain any untrue statement of a material fact be unreasonably withheld or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meetingdelayed. If, If at any time prior to the Effective Time, any event or circumstance information relating to Parent Newco, NEXTLINK or Merger SubConcentric, or any of their respective Affiliates, officers or directors, should be discovered by Parent which NEXTLINK or Concentric that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent so that such information is determined to have become false or misleading in documents would not include any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement misstatement of a material fact or fail 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, at (i) the time party which discovers such information shall promptly notify the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any other parties hereto and an appropriate amendment thereof or supplement thereto) is first mailed describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of Parent NEXTLINK and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange ActConcentric.
Appears in 1 contract
Sources: Merger Agreement (Nextlink Communications Inc /De/)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the PCAOB Audited Financials, Parent (i) Kensington shall prepare and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy statement/prospectus statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant Kensington relating to the Proxy Statement, (i) Parent shall solicit proxies from Parentmeeting of Kensington’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Kensington Stockholders’ Meeting”) in favor of (A) the to be held to consider approval and adoption of (1) this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, (2) the issuance of the New Kensington Common Stock as contemplated by this Agreement, (3) the amendment to the Kensington Organizational Documents and (B4) any approval of other proposals the Company and Parent shall hereafter mutually determine parties deem necessary to be necessary or appropriate in order to effect effectuate the Exchanges, the Merger and the other transactions contemplated by this Agreement Transactions (collectively, the “Parent Kensington Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or therebyHoldco, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent Kensington shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger prepare and Holdco shall file (and the Company and Kensington shall cause Holdco to file) with the SEC a registration statement on Form F-4 or such other transactions contemplated by this Agreement applicable form as Kensington shall decide (the approvals described in foregoing clauses (A) through (B), collectivelyas amended or supplemented from time to time, the “Company Stockholder Approval MattersRegistration Statement”), and (C) in which the adjournment Proxy Statement will be included, in connection with the registration under the Securities Act of the Company Stockholders’ Meeting, if necessary or desirable Holdco Ordinary A Shares and Holdco Warrants to be issued in the reasonable determination Merger. The Company and Holdco shall furnish all information concerning the Company and Holdco, respectively, as Kensington, and, with respect to the Company, Holdco, may reasonably request in connection with such actions and the preparation of the CompanyProxy Statement and Registration Statement. Parent and the Company The parties hereto each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements Laws applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement, the parties hereto shall take, or cause to be taken, all or any action required under any applicable federal or state securities Laws in connection with the issuance of Holdco Ordinary A Shares, in each case to be issued or issuable to the stockholders of Kensington pursuant to this Agreement. As promptly as practicable after finalization of the Registration Statement becomes effectiveProxy Statement, (i) Parent Kensington shall distribute mail the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) . Each of the Company and Holdco shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent Kensington and, with respect to the Company, Holdco, in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent Kensington or Holdco without the approval of the Company other parties hereto (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Each party hereto will advise the Companyothers, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock Holdco Ordinary A Shares to be issued or issuable to the holders stockholders of Company Securities Kensington in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional informationinformation and responses thereto. Each of Parent and the Company parties hereto shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure Kensington represents that the information supplied by Parent Kensington for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Kensington, (iii) the time of each of the Parent Stockholders’ Meeting and the Company Kensington Stockholders’ Meeting. If, at any time prior to and (iv) the Merger Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Merger Effective Time, any event or circumstance relating to Kensington or its officers or directors, should be discovered by Kensington which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Kensington shall promptly inform the Company. All documents that Kensington is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement or any current report on Form 8-K shall not, at (i) the time the Registration Statement is declared effectiveeffective (in the case of the Registration Statement or the Proxy Statement) or at the time filed (in the case of a current report on Form 8-K), (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and Kensington (in the stockholders case of the Company and Registration Statement or the Proxy Statement), (iii) the time of the Parent Kensington Stockholders’ Meeting (in the case of the Registration Statement or the Proxy Statement), and (iv) the Company Stockholders’ MeetingMerger Effective Time (in the case of the Registration Statement or the Proxy Statement), contain any untrue statement of a material fact or fail 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. If, at any time prior to the Merger Effective Time, any event or circumstance relating to the Company, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsKensington. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(e) Holdco represents that the information supplied by Holdco for inclusion in the Registration Statement and the Proxy Statement or any current report on Form 8-K shall not, at (i) the time the Registration Statement is declared effective (in the case of the Registration Statement or the Proxy Statement) or at the time filed (in the case of a current report on Form 8-K), (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Kensington (in the case of the Registration Statement or the Proxy Statement), (iii) the time of the Kensington Stockholders’ Meeting (in the case of the Registration Statement or the Proxy Statement), and (iv) the Merger Effective Time (in the case of the Registration Statement or the Proxy Statement), contain any untrue statement of a material fact or fail 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. If, at any time prior to the Merger Effective Time, any event or circumstance relating to Holdco, or its officers or directors, should be discovered by Holdco which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Holdco shall promptly inform Kensington and the Company. All documents that Holdco is responsible for filing with the SEC in connection with the Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
Appears in 1 contract
Sources: Business Combination Agreement (Kensington Capital Acquisition Corp. II)
Proxy Statement; Registration Statement. (a) As soon as reasonably practicable following the date of this Agreement, (i) Parent (with the assistance and cooperation of the Company as reasonably requested by Parent) shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent and Pubco shall file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy statement/prospectus statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy StatementParent, (i) in which Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and approval of the Ancillary Agreements Mergers, (B) the issuance of shares of Pubco Common Stock as contemplated by this Agreement, (C) the approval and adoption of the Second Amended and Restated Certificate of Incorporation of Pubco to read as set forth on Exhibit A attached hereto, (D) the approval and adoption of an equity incentive plan, in form and substance reasonably acceptable to Parent and the transactions contemplated hereby Company that provides for grant of awards to employees and other service providers of the Company Surviving Subsidiary and its Subsidiaries in the form of options, restricted stock, restricted stock units or therebyother equity-based awards based on Pubco Common Stock with a total pool of awards of Pubco Common Stock not exceeding, including together with the Mergernumber of shares of Parent Common Stock that would be issuable immediately after the Company Merger Effective Time and the Parent Merger Effective Time upon the vesting of all Converted RSUs or Converted Options, 10% of the number of shares of Pubco Common Stock outstanding as of immediately following the Closing (the “Pubco LTIP”), which Pubco LTIP shall have an annual “evergreen” increase of not more than 3% of the shares of Pubco Common Stock outstanding as of the day prior to such increase, and (BE) any approval of other proposals the Company and Parent shall hereafter mutually determine parties deem necessary to be necessary or appropriate in order to effect effectuate the Merger Mergers and the other transactions contemplated by this Agreement Transactions (collectively, the “Parent Proposals”) ), and (ii) Parent shall prepare and Pubco shall file with the Company SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”), which Registration Statement shall solicit proxies from include the Company’s stockholders to vote at Proxy Statement in connection with the special meeting registration under the Securities Act of the Company’s stockholders called for the purpose shares of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement Pubco Common Stock and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the Pubco Assumed Parent Warrants to be issued to Participating Securityholders and/or holders of the Capital Stock in accordance with the Company Organizational DocumentsParent securities, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaqas applicable, pursuant to this Agreement.
(Bb) such other matters as the Company Pubco and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (iw) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (iix) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or the Registration Statement. Parent shall use commercially reasonable efforts to , (iy) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiz) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute mail (or cause to be mailed) the Proxy Statement to its stockholders. Each of Parent, and, pursuant thereto, shall call Pubco and the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(bc) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Pubco or Parent without the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided. Parent and Pubco, howeveron the one hand, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of and the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parentother hand, is required by the SEC and United States securities Laws to be included therein. Parent each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock or the Pubco Assumed Parent Warrants to be issued or issuable to the Participating Securityholders and/or holders of Company Securities Parent securities, as applicable, in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Pubco, Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld withheld, conditioned or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(cd) Each of Parent shall use its reasonable best efforts to ensure and Pubco represents that the information supplied by Parent it for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Parent, (iii) the time of each of the Parent Stockholders’ Meeting and Meeting, (iv) the Company Stockholders’ MeetingMerger Effective Time, and (v) the Parent Merger Effective Time. If, at any time prior to the Company Merger Effective Time, any event or circumstance relating to any of the Parent or Merger SubParties, or their respective officers or directors, should be discovered by Parent or Pubco which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ each of Parent and Pubco is responsible for filing with the SEC in connection with the Merger Mergers or the other transactions contemplated by this Agreement Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(de) The Company shall use its reasonable best efforts to ensure represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and Parent, (iii) the time of the Parent Stockholders’ Meeting Meeting, (iv) the Parent Merger Effective Time, and (iv) the Company Stockholders’ MeetingMerger Effective Time. If, at any time prior to the Company Merger Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent.
(f) As promptly as practicable after the initial filing of the Registration Statement, the Company (with the assistance and cooperation of Parent as reasonably requested by the Company) shall prepare an information statement relating to the action to be taken by the stockholders of the Company pursuant to the Written Consent. The As promptly as practicable after the date on which the Registration Statement becomes effective, the Company shall promptly correct any information provided by it for use deliver the Consent Solicitation Statement and the prospectus contained in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Actits stockholders.
Appears in 1 contract
Sources: Merger Agreement (Breeze Holdings Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon as reasonably practicable following the date of this Agreement, (i) Parent (with the assistance and cooperation of the Company as reasonably requested by Parent) shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent and Pubco shall file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy statement/prospectus statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy StatementParent, (i) in which Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and approval of the Ancillary Agreements Mergers, (B) the issuance of Pubco Ordinary Shares as contemplated by this Agreement, (C) the approval and adoption of the Amended and Restated Pubco Memorandum and Articles, (D) the approval and adoption of an equity incentive plan, in form and substance reasonably acceptable to Parent and the transactions contemplated hereby Company that provides for grant of awards to employees and other service providers of the Company Surviving Subsidiary and its Subsidiaries in the form of options, restricted stock, restricted stock units or therebyother equity-based awards based on Pubco Ordinary Shares with a total pool of awards of Pubco Ordinary Shares not exceeding, including together with the Mergernumber of shares of Parent Common Stock that would be issuable immediately after the Company Merger Effective Time and the Parent Merger Effective Time upon the vesting of all Converted RSUs or Converted Options, 10% of the number of Pubco Ordinary Shares outstanding as of immediately following the Closing (the “Pubco LTIP”), which Pubco LTIP shall have an annual “evergreen” increase of not more than 3% of Pubco Ordinary Shares outstanding as of the day prior to such increase, and (BE) any approval of other proposals the Company and Parent shall hereafter mutually determine parties deem necessary to be necessary or appropriate in order to effect effectuate the Merger Mergers and the other transactions contemplated by this Agreement Transactions (collectively, the “Parent Proposals”) ), and (ii) Parent shall prepare and Pubco shall file with the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting SEC a registration statement on the following matters Form F-4 (together with all amendments thereto, the “Company Stockholders’ MeetingRegistration Statement”) ), which Registration Statement shall include the Proxy Statement in favor connection with the registration under the Securities Act of (A) the adoption and approval of this Agreement Pubco Ordinary Shares and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the Pubco Assumed Parent Warrants to be issued to Participating Securityholders and/or holders of the Capital Stock in accordance with the Company Organizational DocumentsParent securities, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaqas applicable, pursuant to this Agreement.
(Bb) such other matters as the Company Pubco and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (iw) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (iix) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or the Registration Statement. Parent shall use commercially reasonable efforts to , (iy) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiz) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute mail (or cause to be mailed) the Proxy Statement to its stockholders. Each of Parent, and, pursuant thereto, shall call Pubco and the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(bc) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Pubco or Parent without the approval of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided. Parent and Pubco, howeveron the one hand, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of and the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parentother hand, is required by the SEC and United States securities Laws to be included therein. Parent each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Stock or the Pubco Assumed Parent Warrants to be issued or issuable to the Participating Securityholders and/or holders of Company Securities Parent securities, as applicable, in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Pubco, Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld withheld, conditioned or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(cd) Each of Parent shall use its reasonable best efforts to ensure and Pubco represents that the information supplied by Parent it for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and Parent, (iii) the time of each of the Parent Stockholders’ Meeting and Meeting, (iv) the Company Stockholders’ MeetingMerger Effective Time, and (v) the Parent Merger Effective Time. If, at any time prior to the Company Merger Effective Time, any event or circumstance relating to any of the Parent or Merger SubParties, or their respective officers or directors, should be discovered by Parent or Pubco which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ each of Parent and Pubco is responsible for filing with the SEC in connection with the Merger Mergers or the other transactions contemplated by this Agreement Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(de) The Company shall use its reasonable best efforts to ensure represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and Parent, (iii) the time of the Parent Stockholders’ Meeting Meeting, (iv) the Parent Merger Effective Time, and (iv) the Company Stockholders’ MeetingMerger Effective Time. If, at any time prior to the Company Merger Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent.
(f) As promptly as practicable after the initial filing of the Registration Statement, the Company (with the assistance and cooperation of Parent as reasonably requested by the Company) shall prepare an information statement relating to the action to be taken by the stockholders of the Company pursuant to the Written Consent. The As promptly as practicable after the date on which the Registration Statement becomes effective, the Company shall promptly correct any information provided by it for use deliver the Consent Solicitation Statement and the prospectus contained in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Actits stockholders.
Appears in 1 contract
Sources: Merger Agreement (Breeze Holdings Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following the date of this Agreement, Parent and the Company parties shall use commercially reasonable efforts to jointly prepare and cause to be filed with the SEC (i) a registration proxy statement on Form S-4 relating to the Aspen Stockholder Meeting (together with all amendments and supplements thereto, the “Proxy Statement/Prospectus”) in preliminary form and (ii) a Registration Statement on Form S-4 which shall include the Proxy Statement/ Prospectus (together with all amendments and supplements thereto, the “Registration Statement”) relating to be filed by Parent with the SEC, pursuant to which the offer and sale/issuance registration of the shares of Parent Common Newco Stock comprising to be issued in connection with the Aggregate Merger Consideration shall be registered under Merger. Each party agrees, as to itself and its Subsidiaries, that the Securities Act, which Proxy Statement/Prospectus and the Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use commercially reasonable efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements the applicable theretoprovisions of the 1933 Act and the 1934 Act and other Applicable Law.
(b) Each of the parties shall use its reasonable best efforts to (i) have, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from following the filing thereof, the Proxy Statement/Prospectus cleared by the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause and the Registration Statement to be declared effective under the Securities Act as promptly as practicable and 1933 Act, (ii) keep the Registration Statement effective as long as is necessary to consummate the TransactionsMerger and (iii) to respond as promptly as reasonably practicable to any comments or requests for additional information from the SEC with respect to the Proxy Statement/Prospectus or the Registration Statement, as applicable. As Each of the parties shall, as promptly as practicable after the receipt thereof, provide the other parties with copies of any written comments, and advise the other party of any oral comments, with respect to the Proxy Statement/Prospectus and the Registration Statement becomes effectivereceived by such party from the SEC, (i) Parent shall distribute including any request from the SEC for amendments or supplements to the Proxy Statement/Prospectus and the Registration Statement, and shall provide the other with copies of all material or substantive correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand. Notwithstanding the foregoing, prior to filing the Registration Statement (or any amendment or supplement thereto) or mailing the Proxy Statement/Prospectus (or any amendment or supplement thereto) or responding to its stockholders, and, pursuant any comments of the SEC with respect thereto, each of the parties shall call provide the Parent Stockholders’ Meeting other parties and its counsel a reasonable opportunity to review such document or response (including the proposed final version of such document or response) and consider in accordance with Nevada Law and (ii) good faith the Company shall distribute comments of the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent other party in connection with any such actions and document or response. None of the preparation parties or their respective Representatives shall agree to participate in any material or substantive meeting or conference (including by telephone) with the SEC, or any member of the staff thereof, in respect of the Registration Statement or the Proxy Statement/Prospectus unless it consults with the other parties in advance and, to the extent permitted by the SEC, allows the other parties to participate. Subject to Section 5.03, the Proxy Statement/Prospectus shall include the Aspen Board Recommendation.
(bc) No filing of, or amendment or supplement The parties shall make all necessary filings with respect to the Proxy Statement or Transactions under the Registration Statement will be made by Parent without 1933 Act and the approval 1934 Act and applicable state “blue sky” laws and the rules and regulations thereunder. Each of the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent parties will advise the Companyother parties, promptly after it receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Common Newco Stock to be issued or issuable to the holders of Company Securities in connection with this Agreement the Merger for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement Statement/Prospectus or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance information relating to Parent or Merger Subthe parties, or any of their respective Affiliates, officers or directors, directors should be discovered by Parent which a party that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent /Prospectus so that such information is determined to have become false or misleading in documents would not include any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement misstatement of a material fact or fail 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, at (i) the time party that discovers such information shall promptly notify the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any other parties and an appropriate amendment thereof or supplement thereto) is first mailed describing such information shall be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange ActAspen.
Appears in 1 contract
Sources: Transaction Agreement and Plan of Merger (Aspen Technology Inc /De/)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this Agreement, Parent and the Company shall prepare and file the Company Proxy Statement, and Parent shall prepare and file the Parent Stock Registration Statement (in which the Company Proxy Statement shall be included) and the ADS Registration Statement, with the SEC. Each of Parent and the Company shall provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Company Proxy Statement and the Registration Statements, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Company Proxy Statement and the Registration Statements. Parent and the Company shall use all commercially reasonable efforts to jointly prepare a registration statement on Form S-4 cause the Registration Statements to become effective under the 1933 Act as soon after such filing as practicable and to keep the Registration Statements effective (together with all amendments thereto, in the “case of the Parent Stock Registration Statement”) , as long as is necessary to be filed by Parent with consummate the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Merger). The Company Proxy Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and recommendation of the Company. Pursuant to Board of Directors of the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) Company in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any except to the extent the Board of Directors shall have withdrawn or modified its approval of other proposals the Company and Parent shall hereafter mutually determine or recommendation pursuant to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (BSection 6.03(b), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent and the Company shall use all commercially reasonable efforts to (i) cause the Company Proxy Statement to be mailed to Company stockholders as promptly as practicable after the Parent Stock Registration Statement when filed becomes effective. Parent and the Company shall promptly provide to each other copies of, consult with each other regarding and together prepare written responses with respect to any written comments received from the SEC with respect to the Company Proxy Statement and the Registration Statements and shall promptly advise each other of any oral SEC comments. The Registration Statements and the Company Proxy Statement shall comply as to form in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared effective under the Securities 1933 Act as promptly as practicable and (ii) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation of the Registration Statement1934 Act, respectively.
(b) No filing of, or amendment or supplement Parent and the Company shall make all necessary filings with respect to the Proxy Statement Merger and the transactions contemplated thereby under the 1933 Act, the 1934 Act, Canadian Securities Laws and applicable foreign or the Registration Statement will be made by Parent without the approval of the Company (such approval not to be unreasonably withheld, conditioned state securities or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein"blue sky" laws. Parent will Each party hereto shall advise the Companyother, promptly after it receives receipt of notice thereof, of the time when of the effectiveness of the Registration Statement has become effective or Statements, the filing of any supplement or amendment thereto has been filedthereto, of the issuance of any stop orderorder relating thereto, of the suspension of the qualification of the Parent Common Stock to be issued or ADSs issuable to the holders of Company Securities in connection with this Agreement the Merger for offer offering or sale in any jurisdiction, or of any SEC request by the SEC for amendment of to the Company Proxy Statement or the Registration Statement or Statements, SEC comments thereon and each party's responses thereto or requests by the SEC request for additional information. Each of Parent and No amendment or supplement to the Company Proxy Statement or the Registration Statements shall cooperate and mutually agree upon (such agreement be filed without the approval of the parties hereto, which approval shall not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, Parent or the Company should discover any event or circumstance information relating to Parent or Merger Subany party, or any of their respective Affiliates, officers or directors, should be discovered by Parent which that should be set forth in an amendment or a supplement to the Registration Statement Statements or the Company Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent so that such information is determined to have become false or misleading in documents would not include any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement misstatement of a material fact or fail 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, at (i) the time party that discovers such information shall promptly notify the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any other parties hereto and an appropriate amendment thereof or supplement thereto) is first mailed describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective officers or directors, should be discovered by the Company that should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
Appears in 1 contract
Sources: Merger Agreement (Netro Corp)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the PCAOB Audited Financials, Parent (i) InterPrivate and the Company shall use commercially reasonable efforts prepare and file with the SEC a joint consent solicitation/proxy statement (as amended or supplemented, the “Proxy Statement”) to jointly be sent to the stockholders of InterPrivate and to the stockholders of the Company relating to (A) with respect to the Company’s stockholders, the action to be taken by certain stockholders of the Company pursuant to the Written Consent and (B) with respect to InterPrivate’s stockholders, the special meeting of InterPrivate’s stockholders (the “InterPrivate Stockholders’ Meeting”) to be held to consider approval and adoption of (1) this Agreement and the Merger, (2) the issuance of InterPrivate Common Stock as contemplated by this Agreement, (3) the second amended and restated InterPrivate Certificate of Incorporation as set forth on Exhibit B, (4) the Stock Incentive Plan and (5) any other proposals the parties deem necessary to effectuate the Transactions (collectively, the “InterPrivate Proposals”) and (ii) InterPrivate shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to in which the Proxy Statement shall be filed by Parent included as a prospectus, in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of Parent InterPrivate Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”A) to be sent issued to the stockholders of Parent and of the Company. Pursuant Company pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, held by the holders stockholders of InterPrivate immediately prior to the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyEffective Time. Parent InterPrivate and the Company each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactionstransactions contemplated hereby. Prior to the effective date of the Registration Statement, InterPrivate shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares of InterPrivate Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly as practicable after finalization of the Registration Statement becomes effectiveProxy Statement, (i) Parent each of the Company and InterPrivate shall distribute mail the Proxy Statement to its their respective stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law . Each of InterPrivate and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent InterPrivate or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . InterPrivate and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent InterPrivate Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent InterPrivate and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure InterPrivate represents that the information supplied by Parent InterPrivate for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of InterPrivate and the Company and Company, (iii) the time of each of the Parent Stockholders’ Meeting and the Company InterPrivate Stockholders’ Meeting. If, at any time prior to and (iv) the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to InterPrivate or Merger Sub, or their respective officers or directors, should be discovered by InterPrivate which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, InterPrivate shall promptly inform the Company. All documents that InterPrivate is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent InterPrivate and the stockholders of the Company and Company, (iii) the time of the Parent Stockholders’ Meeting and the Company InterPrivate Stockholders’ Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsInterPrivate. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Sources: Business Combination Agreement (InterPrivate Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and Parent’s receipt of the PCAOB Financials from the Company, (i) Parent shall prepare, with the assistance of the Company, and cause to be filed with the Company shall use commercially reasonable efforts to jointly prepare SEC a registration statement on Form S-4 (together with all amendments theretoas amended or supplemented from time to time, and including the Proxy Statement and the Consent Solicitation Statement, the “Registration Statement”) to be filed by Parent in connection with the SEC, pursuant to which registration under the offer and sale/issuance Securities Act of the shares of New Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”A) to be sent issued to the stockholders of Parent and of the Company. Pursuant Company Stockholders pursuant to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor of (A) the approval and adoption of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B) any approval of other proposals held by Parent Shareholders immediately prior to the Company Effective Time.
(b) Parent agrees to include provisions in the Proxy Statement and Parent shall hereafter mutually determine to be necessary or appropriate in order take reasonable action related thereto, with respect to effect the Merger and the other transactions contemplated by this Agreement (collectively, the “Parent Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A1) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and this Agreement as a Business Combination (as defined in the other transactions Parent MAA) (the “Transaction Proposal”), (2) the adoption and approval of the Domestication (the “Domestication Proposal”), (3) the adoption and approval of the governing documents of Parent contemplated by the Post-Closing Parent Certificate of Incorporation (the “Charter Proposal”), (4) to the extent required by NYSE listing rules, the approval of the issuance of the New Parent Common Stock as contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B“Parent Stock Proposal”), collectively, (5) the adoption and approval of the Equity Plan and the ESPP (the “Company Stockholder Approval MattersEquity Plans Proposal”), (6) adjournment of the Parent Shareholders’ Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing proposals (the “Adjournment Proposal”), and (C7) the adjournment approval of any other proposals the parties deem necessary to effectuate the Transactions (the “Additional Proposal” and together with the Transaction Proposal, the Domestication Proposal, the Charter Proposal, the Parent Stock Proposal, the Equity Plans Proposal and the Adjournment Proposal, the “Proposals”).
(c) Each of Parent and the Company shall furnish all information concerning it as may be reasonably requested by the other party in connection with such actions and the preparation of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the CompanyProxy Statement and Registration Statement. Parent and the Company each shall use commercially their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable theretothe rules and regulations promulgated by the SEC, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after such filing and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the TransactionsMerger. As promptly as practicable after the Registration Statement becomes effectiveis declared effective under the Securities Act, (i) Parent shall distribute cause the Proxy Statement to its stockholders, and, pursuant thereto, shall call be mailed to the Parent Stockholders’ Meeting in accordance with Nevada Law Shareholders. Each of Parent and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(bd) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent without the approval of and the Company (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the New Parent Common Stock to be issued or issuable to the holders of Company Securities Stockholders in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or written or oral comments thereon and responses thereto or requests by the SEC for additional informationinformation and responses thereto, and shall provide the other parties with copies of any such written comments. Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject and shall give the other parties a reasonable opportunity to review and comment on any proposed written or oral responses to such comments prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure responding to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included thereinor its staff.
(ce) Parent shall use its reasonable best efforts to ensure that the information supplied by Parent for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and (iii) the time of each of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
(df) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and (iii) the time of the Parent Stockholders’ Meeting and the Company Stockholders’ Meeting. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or their respective its officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Sources: Business Combination Agreement (Andretti Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the date execution of this AgreementAgreement and receipt of the PCAOB Audited Financials, Parent (i) Ithax and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments theretoprepare, the “Registration Statement”) to be filed by Parent and Ithax shall file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy statement/prospectus (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders shareholders of Parent and of the Company. Pursuant Ithax relating to the Proxy Statement, (i) Parent shall solicit proxies from Parent’s stockholders Ithax Shareholders’ Meeting to vote at the special meeting of Parent’s stockholders called for the purpose of voting on the following matters (the “Parent Stockholders’ Meeting”) in favor be held to consider approval and adoption of (A) this Agreement and the Transactions, (B) the issuance of Ithax Common Stock as contemplated by this Agreement, (C) the Domestication, (D) the Interim Ithax Certificate of Incorporation to replace the Ithax Cayman Governing Documents upon the Domestication, (E) the Final Ithax Certificate of Incorporation to replace the Interim Ithax Certificate of Incorporation at the Closing, (F) the approval and adoption of this Agreement the Stock Incentive Plan, (G) approval and adoption of the Ancillary Agreements and the transactions contemplated hereby or thereby, including the MergerESPP, and (BH) any approval of other proposals the Company and Parent shall hereafter mutually determine Parties deem necessary to be necessary or appropriate in order to effect effectuate the Merger and the other transactions contemplated by this Agreement Mergers (collectively, the “Parent Ithax Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (C) the adjournment of the Company Stockholders’ Meeting, if necessary or desirable in the reasonable determination of the Company. Parent Ithax and the Company shall prepare, and Ithax shall file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) in which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of the shares of Ithax Common Stock held by the shareholders of Ithax immediately prior to the First Effective Time. The Company shall furnish all information concerning the Company as Ithax may reasonably request in connection with such actions and the preparation of the Proxy Statement and the Registration Statement. Ithax and the Company each shall use commercially their reasonable best efforts to (i) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent shall distribute the Proxy Statement to its stockholders, and, pursuant thereto, shall call the Parent Stockholders’ Meeting in accordance with Nevada Law and (ii) the Company shall distribute the Proxy Statement Prior to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent in connection with such actions and the preparation effective date of the Registration Statement, Ithax shall take all or any action required under any applicable federal or state securities laws in connection with the issuances of shares of Ithax Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent Ithax or the Company without the approval of the Company other Party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . Ithax and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Ithax Common Stock to be issued or issuable to the holders stockholders of the Company Securities in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent Ithax and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure Ithax represents that the information supplied by Parent Ithax for inclusion in the Registration Proxy Statement and the Proxy Registration Statement shall not contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements thereinnot, in light of the circumstances under which they were made, not misleading at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders the shareholders of Parent Ithax and the stockholders of the Company and Company, (iii) the time of each of the Parent Stockholders’ Meeting and the Company StockholdersIthax Shareholders’ Meeting. If, at any time prior to and (iv) the First Effective Time, any event or circumstance relating to Parent or Merger Sub, or their respective officers or directors, should be discovered by Parent which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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. If, at any time prior to the First Effective Time, any event or circumstance relating to Ithax, Merger Sub I or Merger Sub II, or their respective officers or directors, should be discovered by Ithax which should be set forth in an amendment or a supplement to the Proxy Statement or Registration Statement, Ithax shall promptly inform the Company. All documents that Ithax is responsible for filing with the SEC in connection with the Mergers or the Transactions will comply as to form and substance in all material aspects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The Company represents that the information supplied by the Company for inclusion in the Proxy Statement and the Registration Statement shall not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders shareholders of Parent Ithax and the stockholders of the Company and Company, (iii) the time of the Parent Stockholders’ Meeting and the Company StockholdersIthax Shareholders’ Meeting, and (iv) the First Effective Time, contain any untrue statement of a material fact or fail 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. If, at any time prior to the First Effective Time, any event or circumstance relating to the CompanyCompany or any Company Subsidiary, or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Proxy Statement or the Proxy Registration Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsIthax. All documents that the Company is responsible for filing with the SEC in connection with the Merger Mergers or the other transactions contemplated by this Agreement shall Transactions will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange ActAct and the rules and regulations thereunder.
Appears in 1 contract
Sources: Business Combination Agreement (ITHAX Acquisition Corp.)
Proxy Statement; Registration Statement. (a) As soon promptly as reasonably practicable following after the execution of this Agreement and receipt of the PCAOB Audited Financials (and in any event not later than 15 days after the date of this Agreementhereof), Parent (i) CAH and the Company shall use commercially reasonable efforts to jointly prepare a registration statement on Form S-4 (together with all amendments thereto, the “Registration Statement”) to be filed by Parent and CAH shall file with the SEC, pursuant to which the offer and sale/issuance of the shares of Parent Common Stock comprising the Aggregate Merger Consideration shall be registered under the Securities Act, which Registration Statement shall include SEC a joint proxy statement/prospectus statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders of Parent and of the Company. Pursuant CAH to the Proxy Statement, (i) Parent shall solicit proxies from ParentCAH’s stockholders to vote at the special meeting of ParentCAH’s stockholders called for the purpose of voting on the following matters (the “Parent CAH Stockholders’ Meeting”) in favor of of: (A1) the approval and adoption of this Agreement Agreement, the Transactions and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, and (B2) any approval of other proposals the Company and Parent shall hereafter mutually determine Parties deem necessary to be necessary or appropriate in order to effect effectuate the Merger and the other transactions contemplated by this Agreement Transactions (collectively, the “Parent CAH Proposals”) and (ii) the Company shall solicit proxies from the Company’s stockholders to vote at the special meeting of the Company’s stockholders called for the purpose of voting on the following matters (the “Company Stockholders’ Meeting”) in favor of (A) the adoption and approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby or thereby, including the Merger, by the holders of the Capital Stock in accordance with the Company Organizational Documents, the Laws of the State of Delaware and the State of Nevada and the rules and regulations of the SEC and Nasdaq, (B) such other matters as the Company and Parent shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger and the other transactions contemplated by this Agreement (the approvals described in foregoing clauses (A) through (B), collectively, the “Company Stockholder Approval Matters”), and (Cii) CAH and the adjournment Company shall jointly prepare and the Company shall file with the SEC a registration statement on Form F-4 (together with all amendments thereto, the “Registration Statement”) in which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of the Company Stockholders’ Meeting, if necessary or desirable in Common Shares to be issued to the reasonable determination shareholders of the CompanyCAH pursuant to this Agreement. Parent Each of CAH and the Company shall use commercially their reasonable best efforts to (i) cause the Proxy Statement and Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, and (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or the Registration Statement. Parent shall use commercially reasonable efforts to , (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iiiv) keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, (i) Parent CAH shall distribute mail the Proxy Statement to its stockholders. Subject to Section 6.16(c) and Schedule 6.16(c), andin the event a Tax opinion regarding the Intended Tax Treatment is required to be provided in connection with the Registration Statement, pursuant theretocounsel to CAH shall provide such opinion regarding the Intended Tax Treatment in customary short-form (at a “more likely than not” standard) (it being understood that this provision shall not require counsel to CAH to provide such Tax opinion in the event that counsel to CAH determines, shall call in its reasonable discretion, that it cannot provide such Tax opinion as a result of any change in law or official guidance after the Parent Stockholders’ Meeting in accordance with Nevada Law date hereof). Each of CAH and (ii) the Company shall distribute the Proxy Statement to the Company’s stockholders, and, pursuant thereto, shall call the Company Stockholders’ Meeting in accordance with Delaware Law. The Company shall promptly furnish all information concerning it as may reasonably be requested by Parent the other Party in connection with such actions and the preparation of the Registration Statement and the Proxy Statement. The Company shall furnish all information concerning the Company as CAH may reasonably request in connection with such actions and the preparation of the Registration Statement and Proxy Statement.
(b) No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by Parent CAH or the Company without the approval of the Company other party (such approval not to be unreasonably withheld, conditioned or delayed); provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in . CAH and the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein. Parent Company each will advise the Companyother, promptly after it receives they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Parent Company Common Stock Shares to be issued or issuable to the holders of Company Securities CAH Class A Common Stock in connection with this Agreement for offer offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. Each of Parent CAH and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld or delayed), any response to comments of the SEC with respect to the Proxy Statement or the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto; provided, however, that subject to prior compliance with this clause (b), Parent will be permitted to make such filing or response in the absence of such approval if the basis of the Company’s failure to consent is the Company’s unwillingness to permit the inclusion in such filing or response of information that, based on the advice of outside counsel to Parent, is required by the SEC and United States securities Laws to be included therein.
(c) Parent shall use its reasonable best efforts to ensure CAH represents that the information supplied by Parent CAH for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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 at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders of Parent and the stockholders of the Company and CAH, (iii) the time of each of the Parent Stockholders’ Meeting and the Company CAH Stockholders’ Meeting, and (iv) the Effective Time. If, at any time prior to the Effective Time, any event or circumstance relating to Parent or Merger SubCAH, or their respective its officers or directors, should be discovered by Parent CAH which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, Parent CAH shall promptly inform the Company. Parent shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. All documents that ▇▇▇▇▇▇ CAH is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
(d) The Company shall use its reasonable best efforts to ensure represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall not contain any untrue statement of a material fact or fail 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, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent and the stockholders of the Company and CAH, (iii) the time of the Parent Stockholders’ Meeting and the Company CAH Stockholders’ Meeting, and (iv) the Effective Time. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, Company or any Company Subsidiary or their respective officers or directors, should be discovered by the Company that which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement, the Company shall promptly inform Parent. The Company shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable LawsCAH. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement shall will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
Appears in 1 contract