Common use of Proxy Statement; Registration Statements Clause in Contracts

Proxy Statement; Registration Statements. (a) As promptly as practicable after the execution of this Agreement, (i) the Parent and the Company shall jointly prepare and file with the SEC a single document that will constitute (A) 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, (B) the proxy statement of the Parent relating to the special meeting of the Parent's stockholders (the "PARENT STOCKHOLDERS MEETING") to be held to consider approval of the issuance of the Parent Common Stock to be issued in the Merger, (C) the registration statement on Form S-4 of the Parent (together with all amendments thereto, the "REGISTRATION STATEMENT"), in connection with the registration under the Securities Act of the Parent Common Stock to be issued to the stockholders of the Company in connection with the Merger and the prospectus included in the Registration Statement (such single document, together with any amendments thereof or supplements thereto, the "PROXY STATEMENT") and (ii) the Parent shall prepare and file with the SEC the registration statement on Form S-4 of the Parent or a shelf registration statement on Form S-3, as the case may be (together with all amendments thereto, the "EXCHANGE OFFER REGISTRATION STATEMENT"), providing for the offer to exchange and consent solicitation by Parent and registration under the Securities Act of certain of its new 10 1/2% Senior Notes due 2007 (the "NEW PARENT NOTES") to holders of each of the Company's 14 1/2% Senior Discount Notes due 2004 (the "COMPANY SENIOR NOTES") and Convertible Notes, which New Parent Notes will have the terms substantially as specified in Section 5.5 of the Parent Disclosure Letter and which exchange offer and consent solicitation will be commenced on the basis and with the terms substantially as specified in Section 5.5 of the Parent Disclosure Letter (the "EXCHANGE OFFER"). Substantially contemporaneously with the filing of the Proxy Statement with the SEC, copies of the Proxy Statement shall be provided to NASDAQ and the American Stock Exchange. The Parent and the Company each shall use its reasonable best efforts to cause the Registration Statement and the Exchange Offer Registration Statement to become effective as promptly as practicable, and, prior to the effective date of the Registration Statement (the "REGISTRATION STATEMENT EFFECTIVE DATE"), the Parent shall take all or any action required under any applicable Law in connection with the issuance of Parent Common Stock pursuant to the Merger. The Parent or the Company, as the case may be, shall furnish all information concerning the Parent or the Company as the other party may reasonably request in connection with such actions and the preparation of the Proxy Statement, the Registration Statement and the Exchange Offer Registration Statement. As promptly as practicable after the Registration Statement Effective Date, the proxy statements and prospectus included in the Proxy Statement (collectively, the "PROXY MATERIALS") will be mailed to the stockholders of the Parent and the Company and the Exchange Offer will be commenced. The Parent and the Company shall cause the Proxy Statement to comply as to form and substance in all material respects with the applicable requirements of (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 American Stock Exchange and NASDAQ and (iv) the GCL. (b) 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; PROVIDED, HOWEVER, that the Board of Directors of the Company may, at any time prior to the Effective Time, withdraw, modify or change any such recommendation solely in accordance with the provisions of Section 5.8(b) hereof. In addition, the Proxy Statement and the Proxy Materials will include a copy of the written opinions of the Company Financial Advisor and the Parent Financial Adviser referred to in Sections 3.20 and 4.19 respectively. (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 or delayed. (d) The information supplied by the Company for inclusion in the Proxy Statement, the Registration Statement or the Exchange Offer Registration Statement, as the case may be, shall not, at (i) the time the Registration Statement or Exchange Offer Registration Statement is declared effective, (ii) the time the Proxy Materials (or any amendment thereof or supplement thereto) is first mailed to the stockholders of each of the Parent and the Company, (iii) the time of the Company Stockholders Meeting, (iv) the time of the Parent Stockholders Meeting and (v) the Effective Time, contain any untrue statement of a material fact or fail to state any material fact required to be stated in the Proxy Statement, the Registration Statement or the Exchange Offer Registration Statement, as the case may be, or necessary in order to make the statements in the Proxy Statement, the Registration Statement or the Exchange Offer Registration Statement, as the case may be, not misleading. If at any time prior to the Effective Time any event or circumstance relating to the Company 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 Proxy Statement, the Registration Statement or the Exchange Offer Registration Statement, the Company shall promptly inform the Parent. All documents that the Company is responsible for filing with the SEC in connection with the transactions contemplated 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) The information supplied by the Parent for inclusion in the Proxy Statement, the Registration Statement or the Exchange Offer Registration Statement, as the case may be, shall not, at (i) the time the Registration Statement or the Exchange Offer Registration Statement is declared effective, (ii) the time the Proxy Materials (or any amendment of or supplement to the Proxy Materials) are first mailed to the stockholders of each of the Parent and the Company, (iii) the time of the Company Stockholders Meeting, (iv) the time of the Parent Stockholders Meeting and (v) the Effective Time, contain any untrue statement of a material fact or fail to state any material fact required to be stated in the Proxy Statement, the Registration Statement or the Exchange Offer Registration Statement, as the case may be, or necessary in order to make the statements in the Proxy Statement, the Registration Statement or the Exchange Offer Registration Statement, as the case may be, not misleading. 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, the Registration Statement or the Exchange Offer Registration Statement, 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.