Proxy Statement; Shareholder Approval. (a) As promptly as reasonably practicable following the date of this Agreement, the Company will prepare and file a preliminary Proxy Statement with the SEC. Subject to Section 6.9, the Proxy Statement will include the Company Board Recommendation. Parent will cooperate with the Company in the preparation and filing of the Proxy Statement and will furnish all information concerning it that is necessary in connection with the preparation of the Proxy Statement and is reasonably requested by the Company. The Company will use its reasonable best efforts to have the Proxy Statement cleared by the SEC as promptly as reasonably practicable after such filing and the Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s shareholders, in each case as promptly as reasonably practicable after the Company learns that the Proxy Statement will not be reviewed or that the SEC staff has no further comments thereon. Prior to filing or mailing the Proxy Statement or filing any other required documents (or in each case, any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company will provide Parent with an opportunity to review and comment on such document or response (including by participating in any discussions or meetings with the SEC) and will give good faith consideration to any comments made by Parent and its counsel. The Company will notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent with copies of all correspondence between the Company and the SEC or its staff with respect to the Proxy Statement or the Transactions. (b) If, at any time prior to obtaining the Company Shareholder Approval, any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading, the Party that discovers such information will as promptly as practicable notify the other Party and an appropriate amendment or supplement describing such information will be filed with the SEC as promptly as practicable after the other Party has had a reasonable opportunity to review and comment thereon, and, to the extent required by applicable Law, disseminated to the shareholders of the Company. The Proxy Statement will comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and other applicable Law, including the regulations and requirements of NYSE. (c) The Company will call a meeting of its shareholders to be held as soon as reasonably practicable after the Proxy Statement is cleared by the SEC staff for mailing to consider and vote on approval of this Agreement and any other matters required to be voted upon by the Company’s shareholders in connection with the Transactions (including any adjournment or postponement thereof, the “Company Shareholders Meeting”). Subject to and until the Company Board effects a Change of Recommendation pursuant to Section 6.9(c), the Company Board will use its reasonable best efforts to obtain from its shareholders the Company Shareholder Approval. Subject to Section 6.9(c), the Company Board will recommend that its shareholders vote in favor of approval of this Agreement (the “Company Board Recommendation”). Subject to the Company’s right to terminate this Agreement under Section 8.1(d)(ii), the Company and Parent agree that the Company’s obligations pursuant to the first two sentences of this Section 6.2(c) will not be affected by the commencement, public proposal or communication to the Company of any Alternative Proposal, or by the withdrawal or modification by the Company Board of the Company Board Recommendation.
Appears in 3 contracts
Sources: Merger Agreement (Southern Co), Merger Agreement (Agl Resources Inc), Merger Agreement
Proxy Statement; Shareholder Approval. (a) Prior to the Exercise Notice Date, if the Buyer shall, through its Board of Directors, in its sole discretion, authorize the exercise of the Call Option, the Buyer shall, through its Board of Directors, unless the Buyer Shareholder Approval shall have been previously obtained, recommend (without any qualification that is adverse to the Seller or the Company) that the shareholders of the Buyer approve the issuance of the Second Step Buyer Shares in connection with the Second Step Closing (such recommendation, the “Buyer Board Recommendation”). As promptly as reasonably practicable following after the date Exercise Notice Date, unless the Buyer Shareholder Approval shall have previously been obtained, the Buyer shall prepare the Proxy Statement (which shall, subject to the remainder of this AgreementSection 7.05, contain the Company will prepare Buyer Board Recommendation) and file a preliminary Proxy Statement it with the SECSEC under the Exchange Act. Subject to Section 6.9No filing of, or amendment or supplement to, the Proxy Statement will include shall be made by the Company Board Recommendation. Parent will cooperate Buyer without first providing the Seller and its counsel reasonable opportunity to review and comment thereon and subject to and in accordance with the Company in the preparation and filing Section 3.06 of the Proxy Statement and will furnish all information concerning it that is necessary Buyer Disclosure Schedule, consider in connection with the preparation of the Proxy Statement and is reasonably requested by the Companygood faith, acting reasonably, such comments prior to such filing. The Company will Buyer shall use its reasonable best efforts to have the Proxy Statement cleared by the SEC under the Exchange Act as promptly as reasonably practicable after such filing filing. The Parties shall cooperate with each other in the preparation of the Proxy Statement, and the Company Buyer shall promptly advise the Seller after it receives oral or written notice thereof, of the time when the Proxy Statement has been cleared or any supplement or amendment has been filed, or any oral or written request by the SEC for an amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information and shall promptly provide the Seller with copies of any written communication from the SEC or any state securities commission. The Buyer will respond as promptly as reasonably practicable to any comments that the Buyer or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement and use its reasonable best efforts to cause the Proxy Statement to be mailed disseminated to the Company’s shareholdersholders of Buyer Common Shares as promptly as reasonably practicable, as and to the extent required by Applicable Law. Subject to Applicable Law and the remainder of this Section 7.05, the Buyer shall use reasonable best efforts to solicit from its shareholders proxies in favor of the adoption of the Agreement and shall take all other action necessary or advisable to obtain the Buyer Shareholder Approval, including by taking, in each case accordance with Applicable Law and the Charter Documents of the Buyer, all actions necessary to convene a meeting of its shareholders (the “Shareholder Meeting”) as promptly as reasonably practicable after the Company learns that the Proxy Statement will not be reviewed or that the SEC staff has no further comments thereon. Prior to filing or mailing the Proxy Statement or filing any other required documents (or in each case, any amendment or supplement thereto) or responding to any comments date of the SEC with respect theretoExercise Notice Date (unless the Buyer Shareholder Approval shall have been previously obtained), to consider and vote upon approval of the Company will provide Parent with an opportunity to review and comment on such document or response (including by participating in any discussions or meetings with issuance of the SEC) and will give good faith consideration to any comments made by Parent and its counselSecond Step Buyer Shares. The Company Buyer will notify Parent promptly of keep the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent with copies of all correspondence between the Company and the SEC or its staff Seller updated with respect to proxy solicitation results as reasonably requested by the Proxy Statement Seller. Neither the Board of Directors of the Buyer nor any committee thereof shall, directly or indirectly, withdraw (or modify or qualify in a manner adverse to the Seller or the Transactions.
Company), or publicly propose to do any of the foregoing, the Buyer Board Recommendation (b) Ifany such action being referred to as a “Change of Recommendation”); provided, at any time that prior to obtaining the Company Buyer Shareholder Approval, any information relating to the Company or Parent, or any Board of their respective Affiliates, officers or directors, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light Directors of the circumstances under which they are made, not misleading, the Party that discovers such information will as promptly as practicable notify the other Party and an appropriate amendment or supplement describing such information will be filed with the SEC as promptly as practicable after the other Party has had a reasonable opportunity to review and comment thereon, and, to the extent required by applicable Law, disseminated to the shareholders of the Company. The Proxy Statement will comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and other applicable Law, including the regulations and requirements of NYSE.
(c) The Company will call a meeting of its shareholders to be held as soon as reasonably practicable after the Proxy Statement is cleared by the SEC staff for mailing to consider and vote on approval of this Agreement and any other matters required to be voted upon by the Company’s shareholders in connection with the Transactions (including any adjournment or postponement thereof, the “Company Shareholders Meeting”). Subject to and until the Company Board effects Buyer may effect a Change of Recommendation if (i) the Board of Directors shall have reasonably determined in good faith, pursuant to Section 6.9(c)advice of its outside legal counsel, that such action is necessary in order for the Company Board will use its reasonable best efforts to obtain from its shareholders the Company Shareholder Approval. Subject to Section 6.9(c), the Company Board will recommend that its shareholders vote in favor of approval of this Agreement (the “Company Board Recommendation”). Subject to the Company’s right to terminate this Agreement under Section 8.1(d)(ii), the Company and Parent agree that the Company’s obligations pursuant to the first two sentences of this Section 6.2(c) will not be affected by the commencement, public proposal or communication to the Company of any Alternative Proposal, or by the withdrawal or modification by the Company Board of Directors to act in a manner consistent with its fiduciary duties under Applicable Law, and (ii) the Company Board Recommendation.Buyer has provided the Seller with at least 5 Business Days’ prior written notice of such Change of
Appears in 1 contract
Proxy Statement; Shareholder Approval. (a) As promptly The Company shall, as soon as reasonably practicable following the date of this Agreement, the Company will prepare and file a with the SEC the proxy statement relating to the Company Shareholders’ Meeting (as defined below) (such proxy statement as amended or supplemented from time to time being hereinafter referred to as the “Proxy Statement”) in preliminary form (provided that the Purchaser and its counsel shall be given opportunity to review and comment on the Proxy Statement prior to its filing with the SEC. Subject to Section 6.9), the Proxy Statement will include and the Company Board Recommendation. Parent will cooperate with the Company in the preparation and filing of the Proxy Statement and will furnish all information concerning it that is necessary in connection with the preparation of the Proxy Statement and is reasonably requested by the Company. The Company will shall use its reasonable best efforts to have the Proxy Statement cleared by the SEC respond as promptly as reasonably practicable after such filing and the Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s shareholders, in each case as promptly as reasonably practicable after the Company learns that the Proxy Statement will not be reviewed or that the SEC staff has no further comments thereon. Prior to filing or mailing the Proxy Statement or filing any other required documents (or in each case, any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company will provide Parent with an opportunity to review and comment on such document or response (including by participating in any discussions or meetings with the SEC) and will give good faith consideration to any comments made by Parent and its counsel. The Company will shall notify Parent the Purchaser promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Schedule 13E-3 (as defined below) or for additional information and will shall supply Parent the Purchaser with copies of all material correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff SEC, on the other hand, with respect to the Proxy Statement or the Transactions.
(b) If, at any time prior to obtaining Schedule 13E-3. The Purchaser shall cooperate in the preparation of the Proxy Statement and shall as soon as practicable following the date hereof furnish the Company Shareholder Approval, any with all information relating to for inclusion in the Company or Parent, or any of their respective Affiliates, officers or directors, is discovered Proxy Statement as shall reasonably be requested by the Company. The Company or Parent that should be set forth in an amendment or supplement shall give the Purchaser and its counsel the opportunity to review all amendments and supplements to the Proxy Statement so that and all responses to requests for additional information and replies to comments of the SEC prior to their being filed with or sent to the SEC, and the Purchaser shall provide the Company with such document would not include any misstatement of a material fact or omit to state any material fact information about it as may be required to be stated therein included in the Proxy Statement or necessary in order as may be reasonably required to make the statements made therein, in light respond to any comment of the circumstances under which they are madeSEC. The Company, not on the one hand, and the Purchaser, on the other hand, agree to promptly correct any information provided by either of them for use in the Proxy Statement or the Schedule 13E-3, if any, if and to the extent that it shall have become false or misleading, and the Party that discovers such information will Company further agrees to take all steps reasonably necessary to cause the Proxy Statement and the Schedule 13E-3 as promptly as practicable notify the other Party and an appropriate amendment or supplement describing such information will so corrected to be filed with the SEC SEC, as promptly as practicable after the other Party has had a reasonable opportunity to review and comment thereon, and, to the extent required by applicable LawLaws. The Company shall cause the Proxy Statement to be mailed to record holders of Company Common Stock as promptly as reasonably practicable after clearance by the SEC, disseminated as and to the extent required by applicable Laws. The Purchaser shall, as soon as practicable following the date of this Agreement, prepare and, together with the Company, file with the SEC a Disclosure Statement on Schedule 13E-3 (the “Schedule 13E-3”). The Company shall cooperate in the preparation, signing (to the extent required) and filing of the Schedule 13E-3 and shall as soon as practicable following the date hereof furnish the Purchaser with all information for inclusion in the Schedule 13E-3 as shall be reasonably requested by the Purchaser.
(b) Subject to the second sentence of this Section 6.1(b), (i) the Proxy Statement shall contain the unanimous recommendation of the Company’s Board of Directors (excluding any director who recuses himself or herself), acting upon the recommendation of the Special Committee, that the shareholders of the Company. The Proxy Statement will comply as to form and substance in all material respects with Company vote for the applicable requirements of the Exchange Act and other applicable Law, including the regulations and requirements of NYSE.
(c) The Company will call a meeting of its shareholders to be held as soon as reasonably practicable after the Proxy Statement is cleared by the SEC staff for mailing to consider and vote on approval of this Agreement and (ii) if there shall have been publicly announced an Acquisition Proposal (as hereinafter defined) and if requested to do so by the Purchaser at any other matters required time prior to the Company Shareholders’ Meeting, the Company’s Board of Directors, acting upon the recommendation of the Special Committee, shall (x) within a reasonable period of time following such request (and prior to the Company Shareholders’ Meeting) publicly reaffirm its recommendation that the shareholders of the Company vote for the approval of this Agreement and/or (y) publicly announce that it is not recommending that the shareholders of the Company accept an alternative Acquisition Proposal. Notwithstanding the immediately preceding sentence, the Board of Directors or the Special Committee, as the case may be, may at any time prior to shareholder approval of this Agreement decline to make, withdraw, modify or change a recommendation that the shareholders of the Company vote to approve this Agreement to the extent that the Board of Directors or the Special Committee determines in good faith, after consultation with legal counsel, that making such recommendation or the failure to so withdraw, modify or change its recommendation would be voted upon by inconsistent with its fiduciary duties to the Company’s shareholders in connection with (other than the Transactions Contributing Shareholders) under applicable Laws (which declinations, withdrawal, modification or change shall not constitute a breach of this Agreement); provided that (i) the Board of Directors or the Special Committee (as the case may be) shall immediately notify the Purchaser of its determination to so decline, withdraw, modify or change its recommendation (including any adjournment the reasoning therefor) and (ii) such declination, withdrawal, modification or postponement thereof, the “Company Shareholders Meeting”). Subject to and until the Company Board effects a Change of Recommendation pursuant to Section 6.9(c), the Company Board will use its reasonable best efforts to obtain from its shareholders the Company Shareholder Approval. Subject to Section 6.9(c), the Company Board will recommend that its shareholders vote in favor of approval of this Agreement (the “Company Board Recommendation”). Subject to the Company’s right to terminate this Agreement under Section 8.1(d)(ii), the Company and Parent agree that the Company’s obligations pursuant to the first two sentences of this Section 6.2(c) will change shall not be affected by the commencement, public proposal or communication to relieve the Company of any Alternative Proposal, or by the withdrawal or modification by the Company Board of the Company Board Recommendationits obligations under Sections 6.1(a) and (c) hereof.
Appears in 1 contract
Proxy Statement; Shareholder Approval. (a) As promptly as reasonably practicable following after execution of this Agreement, (i) in connection with the Seller’s Shareholders’ Meeting, Seller shall prepare and file with the Commission, a Proxy Statement and subject to the requirements of the applicable Regulatory Authorities, mail such Proxy Statement to Seller’s shareholders, and (ii) the Parties shall furnish to each other all information concerning them that they may reasonably request in connection with such Proxy Statement. Buyer and Seller shall timely and properly make all necessary filings with respect to the Merger under the Securities Laws. Seller will advise Buyer, when the definitive Proxy Statement or any supplement or amendment has been filed, or of any request by the Commission for the amendment or supplement of the Proxy Statement, or for additional information. Buyer and Seller shall provide each other promptly with copies of all filings and letters to and from the Commission and other Regulatory Authorities. Buyer shall be entitled to review and comment on this Proxy Statement prior to it being filed with the Commission.
(b) Seller shall duly call, give notice of, convene and hold a Shareholders’ Meeting, to be held as soon as reasonably practicable after the definitive Proxy Statement is filed with the Commission and not later than 35 days thereafter on a date reasonably acceptable to Buyer, for the purpose of voting upon approval and adoption of this Agreement, the Company will prepare Merger, and file the related transactions (“Seller Shareholder Approval”) and such other related matters as it deems appropriate and shall, subject to the provisions of Section 8.1(c), through its Board of Directors, recommend to its shareholders the approval and adoption of this Agreement and use its reasonable efforts to obtain the Seller Shareholder Approval.
(c) Neither the Board of Directors of Seller nor any committee thereof shall (i) except as expressly permitted by this Section 8.1(c), withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a preliminary manner adverse to Buyer, the approval or recommendation of such Board of Directors or such committee of the Merger or this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) cause Seller to enter into any letter of intent, agreement in principle, acquisition agreement or other document, instrument or agreement (each, an “Acquisition Agreement”) related to any Acquisition Proposal. Notwithstanding the foregoing, in the event that, prior to the adoption of this Agreement by the holders of Seller Common Stock, the Board of Directors of Seller determines in good faith that it has received a Superior Proposal and, after receipt of advice from outside counsel, that the failure to accept the Superior Proposal would result in the Board of Directors of Seller breaching its fiduciary duties to Seller shareholders under applicable Law, the Board of Directors of Seller may (subject to this and the following sentences) inform Seller shareholders that it no longer believes that the Merger is advisable and no longer recommends approval and may (subject to this Section 8.1(c)) approve or recommend a Superior Proposal (and in connection therewith withdraw or modify its approval or recommendation of this Agreement and the Merger (a “Subsequent Determination”), but only at a time that is after the fifth business day following Buyer’s receipt of written notice advising Buyer that the Board of Directors of Seller has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation, if in writing), identifying the person making such Superior Proposal and stating that it intends to make a Subsequent Determination. After providing such notice, Seller shall provide Buyer reasonable opportunity during this five business day period to make such adjustments in the terms and conditions of this Agreement as would enable Seller to proceed with its recommendation to its shareholders without a Subsequent Determination; provided, however, that any such adjustment shall be at the discretion of the Parties at the time. Notwithstanding any other provision of this Agreement, except to the extent prohibited by the SCBCA determined by Seller after consultation with Seller’s counsel, Seller shall submit this Agreement to its shareholders at its Shareholders’ Meeting even if the Board of Directors of Seller determines at any time after the date hereof that it is no longer advisable or recommends that Seller shareholders reject it, in which case the Board of Directors of Seller may communicate the basis for its lack of recommendation to the shareholders in the Proxy Statement or any appropriate amendment or supplement thereto.
(d) Seller agrees, as to itself and its Subsidiaries, that (i) the Proxy Statement and any amendment or supplement thereto will comply in all material respects with the SEC. Subject to Section 6.9applicable provisions of the Exchange Act and the rules and regulations thereunder, along with the SCBCA, and (ii) none of the information supplied by Seller or any of its Subsidiaries for inclusion or incorporation by reference in the Proxy Statement will include at the Company Board Recommendation. Parent will cooperate with the Company in the preparation and filing date of the Proxy Statement and will furnish all information concerning it that is necessary in connection with mailing to its shareholders or at the preparation time of the Proxy Statement and is reasonably requested by meeting of its shareholders held for the Company. The Company will use its reasonable best efforts to have the Proxy Statement cleared by the SEC as promptly as reasonably practicable after such filing and the Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s shareholders, in each case as promptly as reasonably practicable after the Company learns that the Proxy Statement will not be reviewed or that the SEC staff has no further comments thereon. Prior to filing or mailing the Proxy Statement or filing any other required documents (or in each case, any amendment or supplement thereto) or responding to any comments purpose of the SEC with respect thereto, the Company will provide Parent with an opportunity to review and comment on such document or response (including by participating in any discussions or meetings with the SEC) and will give good faith consideration to any comments made by Parent and its counsel. The Company will notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent with copies of all correspondence between the Company and the SEC or its staff with respect to the Proxy Statement or the Transactions.
(b) If, at any time prior to obtaining the Company Shareholder ApprovalSeller shareholder approval, contain any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not include any misstatement untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under in which they are made, not misleading, the Party that discovers such information will as promptly as practicable notify the other Party and an appropriate amendment or supplement describing such information will be filed with the SEC as promptly as practicable after the other Party has had a reasonable opportunity to review and comment thereon, and, to the extent required by applicable Law, disseminated to the shareholders of the Company. The Proxy Statement will comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and other applicable Law, including the regulations and requirements of NYSE.
(c) The Company will call a meeting of its shareholders to be held as soon as reasonably practicable after the Proxy Statement is cleared by the SEC staff for mailing to consider and vote on approval of this Agreement and any other matters required to be voted upon by the Company’s shareholders in connection with the Transactions (including any adjournment or postponement thereof, the “Company Shareholders Meeting”). Subject to and until the Company Board effects a Change of Recommendation pursuant to Section 6.9(c), the Company Board will use its reasonable best efforts to obtain from its shareholders the Company Shareholder Approval. Subject to Section 6.9(c), the Company Board will recommend that its shareholders vote in favor of approval of this Agreement (the “Company Board Recommendation”). Subject to the Company’s right to terminate this Agreement under Section 8.1(d)(ii), the Company and Parent agree that the Company’s obligations pursuant to the first two sentences of this Section 6.2(c) will not be affected by the commencement, public proposal or communication to the Company of any Alternative Proposal, or by the withdrawal or modification by the Company Board of the Company Board Recommendation.
Appears in 1 contract
Proxy Statement; Shareholder Approval. (a) As promptly as reasonably practicable following In connection with the date of this AgreementShareholders’ Meeting, the Company will Parties shall prepare and file a preliminary Proxy Statement with the SEC. Subject to Section 6.9, the Proxy Statement will include the Company Board Recommendation. Parent will cooperate with the Company in the preparation and filing of the Proxy Statement and will mail such Proxy Statement to the shareholders of Futurus. Each of Crescent and Futurus shall furnish all information concerning it that is necessary and the holders of its capital stock as the other Party may reasonably request in connection with the preparation of the Proxy Statement and is reasonably requested by the Companysuch action. The Company will use its reasonable best efforts to have the Proxy Statement cleared by the SEC as promptly as reasonably practicable after such filing and the Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s shareholders, in each case as promptly as reasonably practicable after the Company learns that the Proxy Statement will not be reviewed or that the SEC staff has no further comments thereon. Prior to filing or mailing the Proxy Statement or filing any other required documents (or in each case, any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company will provide Parent with an opportunity to review and comment on such document or response (including by participating in any discussions or meetings with the SEC) and will give good faith consideration to any comments made by Parent and its counsel. The Company will notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent with copies of all correspondence between the Company and the SEC or its staff with respect to the Proxy Statement or the Transactions.
(b) If, at any time prior to obtaining the Company Shareholder Approval, any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading, the Party that discovers such information will as promptly as practicable notify the other Party and an appropriate amendment or supplement describing such information will be filed with the SEC as promptly as practicable after the other Party has had a reasonable opportunity to review and comment thereon, and, to the extent required by applicable Law, disseminated to the shareholders of the Company. The Proxy Statement will comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and other applicable Law, including the regulations and requirements of NYSE.
(c) The Company will Futurus shall call a meeting of its shareholders Shareholders’ Meeting, to be held as soon as reasonably practicable after the Proxy Statement is cleared execution of this Agreement, on a date reasonably acceptable to Crescent, for the purpose of voting upon approval of this Agreement, the First Step Plan of Merger, and such other related matters as are required by Law (“Futurus Shareholder Approval”) or deemed appropriate by Futurus. In connection with the SEC staff for mailing Shareholders’ Meeting, (i) the Board of Directors of Futurus shall recommend to consider its shareholders the approval of the First Step Merger, and vote on (ii) the Board of Directors and officers of Futurus shall use their reasonable efforts to obtain shareholder approval.
(b) Neither the Board of Directors of Futurus nor any committee thereof shall (i) except as expressly permitted by this Section 8.1(b), withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a manner adverse to Crescent, the approval or recommendation of such Board of Directors or such committee of the First Step Merger or this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) cause Futurus to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an “Acquisition Agreement”) related to any Acquisition Proposal. Notwithstanding the foregoing, in the event that, prior to the approval of this Agreement and any other matters required to be voted upon the First Step Plan of Merger by the Company’s holders of Futurus Common Stock, the Board of Directors of Futurus determines in good faith, after it has received a Superior Proposal and after receipt of advice from outside counsel, that the failure to do so would result in a reasonable possibility that the Board of Directors of Futurus would breach its fiduciary duties to Futurus shareholders under applicable Law, the Board of Directors of Futurus may (subject to this and the following sentences) inform Futurus shareholders that it no longer believes that the First Step Merger is advisable and no longer recommends approval and may (subject to this and the following sentences) approve or recommend a Superior Proposal (and in connection with the Transactions (including any adjournment therewith withdraw or postponement thereof, the “Company Shareholders Meeting”). Subject to and until the Company Board effects a Change of Recommendation pursuant to Section 6.9(c), the Company Board will use modify its reasonable best efforts to obtain from its shareholders the Company Shareholder Approval. Subject to Section 6.9(c), the Company Board will recommend that its shareholders vote in favor of approval or recommendation of this Agreement and the First Step Merger (the a “Company Board RecommendationSubsequent Determination”), but only at a time that is after the fifth business day following Crescent’s receipt of written notice advising Crescent that the Board of Directors of Futurus has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation, if in writing), identifying the person making such Superior Proposal and stating that it intends to make a Subsequent Determination. Subject After providing such notice, Futurus shall provide a reasonable opportunity to Crescent to make such adjustments in the Company’s right to terminate terms and conditions of this Agreement under Section 8.1(d)(ii)as would enable Futurus to proceed with its recommendation to its shareholders without a Subsequent Determination; provided, however, that any such adjustment shall be at the Company and Parent agree that discretion of the Company’s obligations pursuant to Parties at the first two sentences time. Notwithstanding any other provision of this Section 6.2(c) will not be affected by Agreement, Futurus shall submit this Agreement to its shareholders at its Shareholders’ Meeting even if the commencement, public proposal or communication to the Company of any Alternative Proposal, or by the withdrawal or modification by the Company Board of Directors of Futurus determines at any time after the Company Board Recommendationdate hereof that it is no longer advisable or recommends that Futurus shareholders reject it.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Crescent Banking Co)
Proxy Statement; Shareholder Approval. (a) As promptly as reasonably practicable following the date of this Agreement, the Company will prepare and file a preliminary Proxy Statement with the SEC. Subject to Section 6.9, the Proxy Statement will include the Company Board Recommendation. Parent will cooperate with the Company in the preparation and filing of the Proxy Statement and will furnish all information concerning it that is necessary in connection with the preparation of the Proxy Statement and is reasonably requested by the Company. The Company will shall use its reasonable best efforts to have prepare and file with the Proxy Statement cleared by SEC, subject to the SEC prior review of Parent, as promptly as reasonably practicable within fifteen (15) Business Days after such filing the date hereof, a preliminary Proxy Statement (the “Preliminary Proxy Statement”) relating to the Merger as required by the Exchange Act. The Company shall (i) obtain and furnish the information required to be included in the Preliminary Proxy Statement, (ii) provide Parent with, and consult with Parent regarding, any comments that may be received from the SEC or its staff with respect thereto, (iii) provide Parent with a reasonable opportunity to participate with the Company will use or its reasonable best efforts counsel in any discussions or meetings with the SEC, (iv) subject to the prior review of Parent, respond as promptly as reasonably practicable to any such comments made by the SEC or its staff with respect to the Preliminary Proxy Statement, (v) cause the Proxy Statement to be mailed to the Company’s shareholders, in each case shareholders as promptly soon as reasonably practicable after the Company learns resolution of any such comments, (vi) ensure that the Preliminary Proxy Statement will not be reviewed or that complies in all material respects with the SEC staff has no further comments thereon. Prior Exchange Act and (vii) use its reasonable best efforts (subject to filing or mailing the Proxy Statement or filing any other required documents (or right to make a Recommendation Change in each case, any amendment or supplement theretoaccordance with Section 5.2) or responding to any comments obtain the necessary approval of the SEC with respect thereto, the Company will provide Parent with an opportunity to review and comment on such document or response (including Merger by participating in any discussions or meetings with the SEC) and will give good faith consideration to any comments made by Parent and its counselshareholders. The Company will notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent with copies of all correspondence between the Company and the SEC or its staff with respect to the Proxy Statement or the Transactions.
(b) If, at any time prior to obtaining the Company Shareholder ApprovalSpecial Meeting, any information relating to the Company or Company, Parent, or Merger Sub, any of their respective Affiliates, officers this Agreement or directorsthe transactions contemplated hereby (including the Merger), is should be discovered by the Company or Parent that which should be set forth in an amendment or supplement to the Proxy Statement Statement, so that such document would the Proxy Statement shall not include contain any misstatement untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading, the Party party that discovers such information will as shall promptly as practicable notify the other Party party, and an appropriate amendment or supplement describing such information will shall be prepared by the Company and subject to review and approval by Parent (which approval shall not be unreasonably withheld, conditioned or delayed) filed with the SEC as promptly as practicable after the other Party has had a reasonable opportunity to review SEC, and comment thereon, and, to the extent required by applicable Law, disseminated to the shareholders of the Company. The Except as permitted by Section 5.2, the Proxy Statement will comply as to form and substance in all material respects with shall include the applicable requirements recommendation of the Exchange Act and other applicable LawBoard of Directors of the Company that the shareholders adopt this Agreement, including the regulations plan of merger, set forth in this Agreement. Parent shall, upon request, furnish to the Company all information concerning itself, its Subsidiaries, directors, officers and requirements shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or application made by or on behalf of NYSEthe Company or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement.
(cb) The Company will call shall, as promptly as reasonably practicable following the date of this Agreement, in accordance with customary timing in consultation with Parent, take all action necessary to establish a record date for, duly call, give notice of, and, after the mailing of the Proxy Statement, convene and hold a meeting of its shareholders (the “Special Meeting”) for the purpose of obtaining the Requisite Shareholder Approval required in connection with this Agreement and the Merger, and shall use its reasonable best efforts to be held cause such meeting to occur as soon as reasonably practicable after practicable. Once the Proxy Statement Company has established a record date for the Special Meeting, if there is cleared by an Acquisition Proposal then pending, then the SEC staff Company shall not change such record date or establish a different record date for mailing to consider and vote on approval the Special Meeting without the prior written consent of Parent. Without the prior written consent of Parent, the adoption of this Agreement and any the transactions contemplated hereby (including the Merger) shall be the only matter (other than matters of procedure and matters required by applicable Law to be voted upon on by the Company’s shareholders in connection with the Transactions (including any adjournment or postponement thereof, adoption of this Agreement) that the “Company Shareholders shall propose to be acted on by the Company’s shareholders at the Special Meeting”). Subject to and until Section 5.2(g), Board of Directors of the Company Board effects a Change shall continue to recommend that the Company’s shareholders vote in favor of Recommendation pursuant to Section 6.9(c)the adoption of this Agreement, including the plan of merger, and the Company Board will shall use its reasonable best efforts to obtain from its shareholders the Company Requisite Shareholder Approval. Subject Approval in order to Section 6.9(c), consummate the Company Board will recommend that its shareholders vote in favor of approval of this Agreement (the “Company Board Recommendation”). Subject to the Company’s right to terminate this Agreement under Section 8.1(d)(ii), the Company and Parent agree that the Company’s obligations pursuant to the first two sentences of this Section 6.2(c) will not be affected by the commencement, public proposal or communication to the Company of any Alternative Proposal, or by the withdrawal or modification by the Company Board of the Company Board RecommendationMerger.
Appears in 1 contract
Sources: Merger Agreement (Radisys Corp)
Proxy Statement; Shareholder Approval. (a) As promptly as reasonably practicable following after execution of this Agreement, (i) in connection with the Seller's Shareholders' Meeting, Seller shall prepare and file with the Commission, a Proxy Statement and subject to the requirements of the applicable Regulatory Authorities, mail such Proxy Statement to Seller's shareholders, and (ii) the Parties shall furnish to each other all information concerning them that they may reasonably request in connection with such Proxy Statement. Buyer and Seller shall timely and properly make all necessary filings with respect to the Merger under the Securities Laws. Seller will advise Buyer, when the definitive Proxy Statement or any supplement or amendment has been filed, or of any request by the Commission for the amendment or supplement of the Proxy Statement, or for additional information. Buyer and Seller shall provide each other promptly with copies of all filings and letters to and from the Commission and other Regulatory Authorities. Buyer shall be entitled to review and comment on this Proxy Statement prior to it being filed with the Commission.
(b) Seller shall duly call, give notice of, convene and hold a Shareholders' Meeting, to be held as soon as reasonably practicable after the definitive Proxy Statement is filed with the Commission and not later than 35 days thereafter on a date reasonably acceptable to Buyer, for the purpose of voting upon approval and adoption of this Agreement, the Company will prepare Merger, and file the related transactions ("Seller Shareholder Approval") and such other related matters as it deems appropriate and shall, subject to the provisions of Section 8.1(c), through its Board of Directors, recommend to its shareholders the approval and adoption of this Agreement and use its reasonable efforts to obtain the Seller Shareholder Approval.
(c) Neither the Board of Directors of Seller nor any committee thereof shall (i) except as expressly permitted by this Section 8.1(c), withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a preliminary manner adverse to Buyer, the approval or recommendation of such Board of Directors or such committee of the Merger or this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) cause Seller to enter into any letter of intent, agreement in principle, acquisition agreement or other document, instrument or agreement (each, an "Acquisition Agreement") related to any Acquisition Proposal. Notwithstanding the foregoing, in the event that, prior to the adoption of this Agreement by the holders of Seller Common Stock, the Board of Directors of Seller determines in good faith that it has received a Superior Proposal and, after receipt of advice from outside counsel, that the failure to accept the Superior Proposal would result in the Board of Directors of Seller breaching its fiduciary duties to Seller shareholders under applicable Law, the Board of Directors of Seller may (subject to this and the following sentences) inform Seller shareholders that it no longer believes that the Merger is advisable and no longer recommends approval and may (subject to this Section 8.1(c)) approve or recommend a Superior Proposal (and in connection therewith withdraw or modify its approval or recommendation of this Agreement and the Merger (a "Subsequent Determination"), but only at a time that is after the fifth business day following Buyer's receipt of written notice advising Buyer that the Board of Directors of Seller has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation, if in writing), identifying the person making such Superior Proposal and stating that it intends to make a Subsequent Determination. After providing such notice, Seller shall provide Buyer reasonable opportunity during this five business day period to make such adjustments in the terms and conditions of this Agreement as would enable Seller to proceed with its recommendation to its shareholders without a Subsequent Determination; provided, however, that any such adjustment shall be at the discretion of the Parties at the time. Notwithstanding any other provision of this Agreement, except to the extent prohibited by the SCBCA determined by Seller after consultation with Seller's counsel, Seller shall submit this Agreement to its shareholders at its Shareholders' Meeting even if the Board of Directors of Seller determines at any time after the date hereof that it is no longer advisable or recommends that Seller shareholders reject it, in which case the Board of Directors of Seller may communicate the basis for its lack of recommendation to the shareholders in the Proxy Statement or any appropriate amendment or supplement thereto.
(d) Seller agrees, as to itself and its Subsidiaries, that (i) the Proxy Statement and any amendment or supplement thereto will comply in all material respects with the SEC. Subject to Section 6.9applicable provisions of the Exchange Act and the rules and regulations thereunder, along with the SCBCA, and (ii) none of the information supplied by Seller or any of its Subsidiaries for inclusion or incorporation by reference in the Proxy Statement will include at the Company Board Recommendation. Parent will cooperate with the Company in the preparation and filing date of the Proxy Statement and will furnish all information concerning it that is necessary in connection with mailing to its shareholders or at the preparation time of the Proxy Statement and is reasonably requested by meeting of its shareholders held for the Company. The Company will use its reasonable best efforts to have the Proxy Statement cleared by the SEC as promptly as reasonably practicable after such filing and the Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s shareholders, in each case as promptly as reasonably practicable after the Company learns that the Proxy Statement will not be reviewed or that the SEC staff has no further comments thereon. Prior to filing or mailing the Proxy Statement or filing any other required documents (or in each case, any amendment or supplement thereto) or responding to any comments purpose of the SEC with respect thereto, the Company will provide Parent with an opportunity to review and comment on such document or response (including by participating in any discussions or meetings with the SEC) and will give good faith consideration to any comments made by Parent and its counsel. The Company will notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent with copies of all correspondence between the Company and the SEC or its staff with respect to the Proxy Statement or the Transactions.
(b) If, at any time prior to obtaining the Company Shareholder ApprovalSeller shareholder approval, contain any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not include any misstatement untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under in which they are made, not misleading, the Party that discovers such information will as promptly as practicable notify the other Party and an appropriate amendment or supplement describing such information will be filed with the SEC as promptly as practicable after the other Party has had a reasonable opportunity to review and comment thereon, and, to the extent required by applicable Law, disseminated to the shareholders of the Company. The Proxy Statement will comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and other applicable Law, including the regulations and requirements of NYSE.
(c) The Company will call a meeting of its shareholders to be held as soon as reasonably practicable after the Proxy Statement is cleared by the SEC staff for mailing to consider and vote on approval of this Agreement and any other matters required to be voted upon by the Company’s shareholders in connection with the Transactions (including any adjournment or postponement thereof, the “Company Shareholders Meeting”). Subject to and until the Company Board effects a Change of Recommendation pursuant to Section 6.9(c), the Company Board will use its reasonable best efforts to obtain from its shareholders the Company Shareholder Approval. Subject to Section 6.9(c), the Company Board will recommend that its shareholders vote in favor of approval of this Agreement (the “Company Board Recommendation”). Subject to the Company’s right to terminate this Agreement under Section 8.1(d)(ii), the Company and Parent agree that the Company’s obligations pursuant to the first two sentences of this Section 6.2(c) will not be affected by the commencement, public proposal or communication to the Company of any Alternative Proposal, or by the withdrawal or modification by the Company Board of the Company Board Recommendation.
Appears in 1 contract
Proxy Statement; Shareholder Approval. (a) As promptly as reasonably practicable Purchaser shall, in accordance with Applicable Law and its Certificate of Incorporation and Bylaws:
(i) duly call, give notice of, convene and hold a special meeting of its shareholders (the “SPECIAL MEETING”) following the mailing of the Proxy Statement for the purpose of obtaining the Shareholder Approval; provided, however, that Purchaser may adjourn or postpone the Special Meeting to ensure that any required supplement or amendment to the Proxy Statement is provided to Purchaser’s shareholders or, if, as of the time for which the Special Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of Purchaser Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Special Meeting;
(ii) prepare a form of proxy statement to be mailed to the shareholders of Purchaser in connection with the Special Meeting (the “PROXY STATEMENT”) as soon as practicable after the date hereof (provided that (A) Sellers and their counsel shall be given reasonable opportunity to review and comment on the preliminary Proxy Statement, any amendments thereto and related communications with shareholders prior to filing with the SEC, and (B) Sellers shall have the right to draft and to consent to any descriptions of this Agreementor references to Sellers, the Company will prepare or any of their respective Affiliates, which consent shall not be unreasonably withheld or delayed) and file a preliminary use its reasonable best
(1) to respond as promptly as practicable to any comments made by the SEC with respect to the Proxy Statement and (2) to promptly supply Sellers with copies of all correspondence between Purchaser or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement, and (y) to cause the definitive Proxy Statement to be mailed to its shareholders promptly following the clearance of the Proxy Statement by the SEC and, if necessary, after the Proxy Statement shall have been so mailed, promptly circulate amended, supplemental or supplemented proxy material, and, if required in connection therewith, re-solicit proxies;
(iii) make all other necessary filings with respect to this Agreement and the Ancillary Agreements and the transactions contemplated thereby under the Securities Act, the Exchange Act, the rules and regulations of the AMEX, applicable state “blue sky” laws and the rules and regulations thereunder (the “APPLICABLE FILINGS”); and
(iv) except to the extent the Board of Directors of Purchaser determines in good faith, after consultation with outside counsel, that contrary action is required by such Board of Directors’ fiduciary duties under Applicable Law, recommend that the shareholders of Purchaser vote to approve the transactions contemplated by this Agreement and the Ancillary Agreements, and include in the Proxy Statement such recommendation and take all lawful action to solicit such approvals and acceptances.
(b) As soon as practicable after the date hereof, but in no event later than October 15, 2004, (i) Sellers shall cause the Company and its accountants to conform the Financial Statements and the Unaudited Financial Statements to the requirements of SEC Schedule 14A and Regulation S-X of the Exchange Act (collectively, the “PROXY COMPLIANT FINANCIALS”), and thereafter to promptly deliver the Proxy Compliant Financials (together with notes and schedules thereto) to Purchaser, and (ii) Sellers shall furnish to Purchaser all other historical and pro forma financial information and all information concerning the business and affairs of the Company and its Subsidiaries and/or Sellers, as well as any biographical and other information concerning any individual to be appointed to the Board of Directors of Purchaser or to the management of Purchaser (including, without limitation, such information as may be required by SEC Schedule 14A, Regulation S-K, Regulation S-X or Regulation M-A) as may reasonably be requested by Purchaser, in a form reasonably satisfactory to Purchaser, as shall be required to be included in or is otherwise reasonably necessary in connection with the SEC. Subject to Section 6.9preparation of, the Proxy Statement will include or any amendment or supplement thereto. Prior to the Closing, (i) Sellers shall cause the Company Board Recommendation. Parent will cooperate with and its accountants to conform the Financial Statements and the Unaudited Financial Statements to the requirements of, and shall cause the Company in the preparation and filing its auditors to prepare any and all other audited and unaudited consolidated financial statements of the Proxy Statement Company as of and will for any and all periods (including, without limitation, audited consolidated financial statements of the Company as of and for the 12-month period ended March 31, 2003 and audited consolidated statement of income of the Company for the 12-month period ended March 31, 2002) as may be required by, SEC Form 10-K, Form 10-Q, Form 8-K, Form S-1 and Regulation S-X of the Exchange Act (collectively, the “APPLICABLE FILINGS COMPLIANT FINANCIALS”), and prior to the Closing shall deliver the Applicable Filings Compliant Financials (together with notes and schedules thereto) to Purchaser, and (ii) Sellers shall furnish to Purchaser all other financial and other information concerning it that the Company and its Subsidiaries and/or Sellers as may reasonably be requested by Purchaser, in a form reasonably satisfactory to Purchaser, as shall be required to be included in or is otherwise reasonably necessary in connection with the preparation of, all Applicable Filings or any amendments or supplements thereto. All Proxy Compliant Financials shall comply with the requirements of SEC Schedule 14A and Regulation S-X of the Exchange Act. All Applicable Filings Compliant Financials shall comply with the requirements of SEC Form 10-K, Form 10-Q, Form 8-K, Form S-1 and Regulation S-X of the Exchange Act. In addition, Sellers shall cause the legal counsel and accountants of the Company to reasonably cooperate with Purchaser’s counsel and accountants in the preparation of the Proxy Statement and is reasonably requested by the Companyall Applicable Filings. The Company will use its reasonable best efforts information to have the Proxy Statement cleared be supplied by the SEC as promptly as reasonably practicable after such filing Sellers and the Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s shareholders, for inclusion in each case as promptly as reasonably practicable after the Company learns that the Proxy Statement will not be reviewed or that the SEC staff has no further comments thereon. Prior to filing or mailing the Proxy Statement or filing any other required documents Applicable Filing, as applicable, (or i) shall comply in each caseall material respects with all Applicable Laws, any amendment or supplement thereto) or responding to any comments including the Exchange Act (including, without limitation, all instructions and requirements of all applicable Forms and regulations promulgated thereunder), the Securities Act and the rules and regulations of the SEC with respect theretoAMEX, and (ii) will not, on the Company will provide Parent with an opportunity date the Proxy Statement is first mailed to review and comment on such document or response (including by participating in any discussions or meetings with shareholders of Purchaser, or, at the SEC) and will give good faith consideration to any comments made by Parent and its counsel. The Company will notify Parent promptly time of the receipt of Special Meeting, or on the date any comments from Applicable Filing is filed with the SEC or its staff state securities authorities, as applicable, make 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 in the Proxy Statement or any Applicable Filing, as applicable, or omit to state any material fact necessary to correct any statement made in any earlier communication with respect to the solicitation of proxies for the Special Meeting that has become misleading. Sellers and the Company shall promptly update any information or materials provided to Purchaser to the extent necessary to maintain the accuracy and completeness thereof. Sellers’ and the Company’s timely delivery to Purchaser of the information required by this Section 4.07(b) is a condition precedent to Purchaser’s obligations pursuant to this Agreement and the Ancillary Agreements to file the Proxy Statement and any Applicable Filing. The information to be supplied by Purchaser for inclusion in the Proxy Statement or any Applicable Filing, as applicable, (i) shall comply in all material respects with all Applicable Laws, including the Exchange Act (including, without limitation, all instructions and requirements of all applicable Forms and regulations promulgated thereunder), the Securities Act and the rules and regulations of the AMEX, and (ii) will not, on the date the Proxy Statement is first mailed to shareholders of Purchaser, or, at the time of the Special Meeting, or on the date any Applicable Filing is filed with the SEC or state securities authorities, as applicable, make 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 in the Proxy Statement or any Applicable Filing, as applicable, or omit to state any material fact necessary to correct any statement made in any earlier communication with respect to the solicitation of proxies for the Special Meeting that has become misleading. Purchaser shall promptly update any information or materials included in the Proxy Statement or any Applicable Filing to the extent necessary to maintain the accuracy and completeness thereof.
(c) Purchaser will advise Sellers, promptly after it receives notice thereof, of the time when any supplement or amendment has been filed or of any request by the SEC for an amendment of or its staff for amendments or supplements supplement to the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information and will supply Parent with copies of all correspondence between the Company and the SEC or its staff with respect to the Proxy Statement or the Transactions.
(b) If, information. If at any time prior to obtaining the Company Shareholder ApprovalPurchaser or Sellers, respectively, discover any information relating to Purchaser, the Company or ParentCompany, Sellers, or any of their respective Affiliates, officers or directors, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement or any other Applicable Filing so that such the document would will not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are were made, not misleading, then the Party party that discovers such any misleading information will as shall promptly as practicable notify the other Party parties hereto and an appropriate amendment or supplement describing such the information will shall be promptly filed with the SEC as promptly as practicable after the other Party has had a reasonable opportunity to review and comment thereon, and, to the extent required by applicable Lawlaw or regulation, disseminated to the shareholders of the Company. The Proxy Statement will comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and other applicable Law, including the regulations and requirements of NYSEPurchaser’s shareholders.
(c) The Company will call a meeting of its shareholders to be held as soon as reasonably practicable after the Proxy Statement is cleared by the SEC staff for mailing to consider and vote on approval of this Agreement and any other matters required to be voted upon by the Company’s shareholders in connection with the Transactions (including any adjournment or postponement thereof, the “Company Shareholders Meeting”). Subject to and until the Company Board effects a Change of Recommendation pursuant to Section 6.9(c), the Company Board will use its reasonable best efforts to obtain from its shareholders the Company Shareholder Approval. Subject to Section 6.9(c), the Company Board will recommend that its shareholders vote in favor of approval of this Agreement (the “Company Board Recommendation”). Subject to the Company’s right to terminate this Agreement under Section 8.1(d)(ii), the Company and Parent agree that the Company’s obligations pursuant to the first two sentences of this Section 6.2(c) will not be affected by the commencement, public proposal or communication to the Company of any Alternative Proposal, or by the withdrawal or modification by the Company Board of the Company Board Recommendation.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wireless Telecom Group Inc)
Proxy Statement; Shareholder Approval. (a) As First Bank and Delanco shall promptly prepare and file with the FDIC and the SEC a proxy statement and offering circular (including any amendments thereto, the “Proxy Statement”) as promptly as reasonably practicable following after the date of this Agreement, the Company will prepare subject to full cooperation of both Parties and file a preliminary Proxy Statement their respective advisors and accountants. First Bank and Delanco agree to cooperate, and to cause their respective Subsidiaries to cooperate, with the SEC. Subject to Section 6.9, the Proxy Statement will include the Company Board Recommendation. Parent will cooperate with the Company other Party and its counsel and its accountants in the preparation and filing of the Proxy Statement and will furnish all information concerning it that is necessary in connection with the preparation of the Proxy Statement Statement. Each of First Bank and is reasonably requested by the Company. The Company will Delanco agrees to use its all commercially reasonable best efforts to have cause the Proxy Statement to be cleared by the FDIC and the SEC as promptly as reasonably practicable after such filing thereof, and following the Proxy Statement being cleared by the FDIC and the Company SEC (whether affirmatively or by lapse of any required review period by the SEC), Delanco shall promptly thereafter mail or deliver the Proxy Statement to its shareholders. First Bank 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 by this Agreement, and Delanco shall furnish all information concerning Delanco and the holders of Delanco Common Stock as may be reasonably requested in connection with any such action. Each of First Bank and Delanco agrees to furnish to the other Party all information concerning itself, its Subsidiaries, officers, directors and shareholders and such other matters as may be reasonably necessary or advisable or as may be reasonably requested in connection with the Proxy Statement or any other statement, filing, notice or application made by or on behalf of First Bank, Delanco or their respective Subsidiaries to any Regulatory Authority in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement. Delanco shall have the right to review and consult with First Bank with respect to any information included in, the Proxy Statement prior to its being filed with the FDIC and the SEC. First Bank will advise Delanco, promptly after First Bank receives notice thereof, of the time when the Proxy Statement has been cleared by the FDIC, or the suspension of the qualification of First Bank Common Stock 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 FDIC for the amendment or supplement of the Proxy Statement or for additional information. Delanco will advise First Bank, promptly after Delanco receives notice thereof, of the time when the Proxy Statement has been cleared by the SEC (whether affirmatively or by lapse of any required review period by the SEC), or of any request by the SEC for the amendment or supplement of the Proxy Statement or for additional information.
(b) Delanco shall duly call, give notice of, establish a record date for, convene and hold a shareholders’ meeting (“Delanco’s Shareholders’ Meeting”) and Delanco shall use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s shareholders, in each case convene such meeting as promptly as reasonably practicable after the Company learns that the Proxy Statement will not be reviewed or that the SEC staff has no further comments thereon. Prior to filing or mailing the Proxy Statement or filing any other required documents (or in each case, any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company will provide Parent with an opportunity to review and comment on such document or response (including by participating in any discussions or meetings with the SEC) and will give good faith consideration to any comments made by Parent and its counsel. The Company will notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent with copies of all correspondence between the Company and the SEC or its staff with respect to the Proxy Statement or the Transactions.
(b) If, at any time prior to obtaining the Company Shareholder Approval, any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading, the Party that discovers such information will as promptly as practicable notify the other Party and an appropriate amendment or supplement describing such information will be filed with the SEC as promptly as practicable after the other Party has had a reasonable opportunity to review and comment thereon, and, to the extent required by applicable Law, disseminated to the shareholders of the Company. The Proxy Statement will comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and other applicable Law, including the regulations and requirements of NYSE.
(c) The Company will call a meeting of its shareholders to be held as soon as reasonably practicable after the Proxy Statement is cleared by the SEC staff FDIC and the SEC, for mailing to consider and vote on the purpose of voting upon the approval of this Agreement and any obtaining the Delanco Shareholder Approval and such other related matters required as it deems appropriate. Delanco agrees that its obligations pursuant to this Section 7.1(b) shall not be voted upon affected by the Company’s commencement, proposal, disclosure or communication to Delanco of any Acquisition Proposal. Delanco shall (i) through its board of directors (which shall unanimously recommend the Merger and this Agreement), recommend to its shareholders in connection with the Transactions approval of this Agreement (including any adjournment or postponement thereof, the “Company Shareholders MeetingDelanco Recommendation”). Subject to , (ii) include such Delanco Recommendation in the Proxy Statement and until the Company Board effects a Change of Recommendation pursuant to Section 6.9(c), the Company Board will (iii) use its reasonable best efforts to obtain from its shareholders the Company Delanco Shareholder Approval. Subject to Section 6.9(c7.2(b), neither the Company Board will recommend that its shareholders vote board of directors of Delanco nor any committee thereof shall withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in favor a manner adverse to First Bank, the Delanco Recommendation or take any action, or make any public statement, filing or release inconsistent with the Delanco Recommendation (any of approval of this Agreement (the foregoing being a “Company Board Change in the Delanco Recommendation”). Subject If requested by First Bank, Delanco shall retain a proxy solicitor reasonably acceptable to, and on terms reasonably acceptable to, First Bank in connection with obtaining the Delanco Shareholder Approval.
(c) Delanco shall adjourn or postpone Delanco’s Shareholders’ Meeting, if, as of the time for which such meeting is originally scheduled there are insufficient shares of Delanco Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such meeting. Delanco shall also adjourn or postpone Delanco’s Shareholders’ Meeting, if on the date of Delanco’s Shareholders’ Meeting Delanco has not recorded proxies representing a sufficient number of shares necessary to obtain the Delanco Shareholder Approval. Notwithstanding anything to the Companycontrary herein, Delanco’s right to terminate Shareholders’ Meeting shall be convened and this Agreement under Section 8.1(d)(ii)shall be submitted to the shareholders of Delanco at Delanco’s Shareholders’ Meeting, for the Company purpose of voting on the adoption of this Agreement and Parent agree that the Companyother matters contemplated hereby, and nothing contained herein shall be deemed to relieve Delanco of such obligation. Delanco shall only be required to adjourn or postpone Delanco’s obligations Shareholders’ Meeting two times pursuant to the first two sentences second sentence of this Section 6.2(c) will not be affected by the commencement, public proposal or communication to the Company of any Alternative Proposal, or by the withdrawal or modification by the Company Board of the Company Board Recommendation7.1(c).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Delanco Bancorp, Inc.)