Registration Statement; Proxy Statements. (a) As soon as practicable after the execution of this Agreement, Company and Parent shall prepare, and Company shall file with the SEC preliminary proxy materials relating to a meeting of Company's stockholders to consider the Merger (the "Company Stockholders Meeting") and the vote of the stockholders of Company with respect to the Merger. In the event that Parent fails to obtain the Parent Stockholder Approval at the June 25 Meeting (as defined in Section 5.7), Parent shall file with the SEC preliminary proxy materials (which may be contained in a joint proxy statement/prospectus together with the preliminary proxy materials relating to the Company Stockholders Meeting) relating to the Parent Stockholders Meeting (as defined in Section 7.1(f)) and the vote of the stockholders of Parent with respect to the proposed increase in authorized capital stock of Parent described in Section 6.1(a). As soon as practicable following receipt of SEC comments on the proxy statement/ prospectus (or joint proxy statement/prospectus or proxy statement for the Parent Stockholders Meeting, as the case may be) to be sent to the stockholders of Company in connection with the Company Stockholders Meeting and, if applicable, the Stockholders of Parent in connection with the Parent Stockholders Meeting (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 sent as aforesaid, the "Proxy Statement"; and, together with any separate proxy statement relating to the Parent Stockholders Meeting, the "Proxy Statements"), Company shall file with the SEC definitive proxy materials relating to the Company Stockholders Meeting and Parent shall file with the SEC a registration statement on Form S-4 (or such other successor form as shall be appropriate) pursuant to which the shares of Parent Common Stock to be issued in the Merger will be registered with the SEC (the "Registration Statement"), which 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 distributed to holders of Company Common Stock pursuant to the Merger; in the event that Parent fails to obtain the Parent Stockholder Approval at the June 25 Meeting, Parent shall also file with the SEC definitive proxy materials relating thereto and shall include the Proxy Statements (in the case of a joint proxy statement/prospectus) in the Registration Statement. Each of Parent and Company shall use its reasonable best efforts to have or cause the Registration Statement to become effective (including clearing the Proxy Statement or Proxy Statements, as the case may be, with the SEC) as promptly as practicable, and shall take any and all actions required under any applicable federal or state securities laws or blue sky laws in connection with the issuance of Parent Common Stock pursuant to the Merger. Without limiting the generality of the foregoing, on the one hand, each of Parent and Company shall (i) notify the other as promptly as practicable after the receipt by it of any written or oral comments of the SEC on, or of any written or oral request by the SEC or any other governmental official for amendments or supplements to, or any other filing or supplemental or additional information relating to, the Proxy Statement (or Proxy Statements, as the case may be) or the Registration Statement, and shall promptly supply the other with copies of all correspondence between it or any of its representatives, on the one hand, and the SEC or any other governmental official, on the other hand, with respect to any of the foregoing filings, and (ii) use all reasonable efforts, after consultation with the other such party, to respond promptly to any comments made by the SEC with respect to the Proxy Statement or Proxy Statements, as the case may be (including each preliminary version thereof), and the Registration Statement (including each amendment thereof and supplement thereto). As promptly as practicable after the Registration Statement shall have become effective, each of Company and Parent shall mail or cause to be mailed its Proxy Statement (if any, in the case of Parent) to its stockholders. (b) Parent and Company shall each cause the Registration Statement and the Proxy Statement (or Proxy Statements, as the case may be) to comply in all material respects with the Securities Act, the Exchange Act and all other applicable federal and state securities law requirements. Each of Parent and Company shall, and shall cause its respective representatives to, fully cooperate with the other such party and its respective representatives in the preparation of the Proxy Statement (or Proxy Statements, as the case may be) and the Registration Statement, and shall provide promptly to the other such information concerning it and its affiliates, directors, officers and stockholders as the other may reasonably request in connection with the preparation of the Proxy Statement or Proxy Statements, as the case may be, and the Registration Statement. If at any time prior to the Effective Time Company or Parent shall become aware of any fact, event or circumstance that is required to be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement (or Proxy Statements, as the case may be), Company or Parent, as the case may be, shall promptly notify the other of such fact, event or circumstance and the parties shall cooperate with each other in filing with the SEC or any other governmental official, and (in the case of a supplement to the Proxy Statement or Proxy Statements, as the case may be) mailing to stockholders of Company, such amendment or supplement. (c) The Proxy Statement (or Proxy Statements, as the case may be) shall contain the unanimous recommendation of the Board of Directors of Company that the Company stockholders approve this Agreement and the Merger and the conclusion of the Board of Directors that the terms and conditions of the Merger are advisable and fair to, and in the best interests of, the stockholders of Company; provided that no such recommendation need be included, and any such -------- recommendation may be withdrawn if previously included, if a Superior Proposal has been made and Company and Company's Board of Directors withdraw or modify such recommendation in compliance with, and otherwise have complied in all respects with, Section 4.4. Notwithstanding anything to the contrary contained herein, Company shall not include in the Proxy Statement any information with respect to Parent or its affiliates or associates, the form and content of which information shall not have been approved by Parent prior to such inclusion (which consent will not be unreasonably withheld or delayed). (d) In the event that a Proxy Statement relating to the Parent Stockholders Meeting is required hereunder, such Proxy Statement shall contain the unanimous recommendation of the Board of Directors of Parent that the Parent stockholders approve the increase in authorized capital stock described in Section 6.1(a); provided that such recommendation may be withdrawn upon a notice -------- of termination of this Agreement pursuant hereto. (e) Company agrees that: (i) the information supplied by Company for inclusion in the registration statement shall not at the time the Registration Statement (including any amendments or supplements thereto) is declared effective by the SEC or at the Effective Time contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) the information supplied by Company for inclusion in the Proxy Statement relating to the Company Stockholders Meeting shall not, on the date the Proxy Statement relating to the Company Stockholders Meeting is first mailed to the stockholders of Company or at the time of the Company Stockholders Meeting, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading; and (iii) if at any time prior to the Effective Time any event or information should be discovered by Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, Company shall promptly inform Parent of such event or information. Notwithstanding the foregoing, Company makes no representation, warranty or covenant with respect to any information supplied by Parent or Merger Sub which is contained in any of the foregoing documents. (f) Parent agrees that: (i) the information supplied by Parent for inclusion in the Registration Statement shall not at the time the Registration Statement (including any amendments or supplements thereto) is declared effective by the SEC or at the Effective Time contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) the information supplied by Parent for inclusion in the Proxy Statement relating to the Company Stockholders Meeting shall not, on the date such Proxy Statement is first mailed to Company's stockholders or at the time of the Company Stockholders Meeting, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which it is made, not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading and (iii) if at any time prior to the Effective Time any event or information should be discovered by Parent which should be set forth in an amendment to the Registration Statement or in a supplement to such Proxy Statement, Parent will promptly inform Company of such event or information. Notwithstanding the foregoing, neither Parent nor Merger Sub makes any representation, warranty or covenant with respect to any information supplied by or on behalf of Company or any of its affiliates which is contained in any of the foregoing documents.
Appears in 2 contracts
Sources: Merger Agreement (E Trade Group Inc), Merger Agreement (E Trade Group Inc)
Registration Statement; Proxy Statements. (a) As soon as practicable after the execution of this Agreement, Company and Parent shall prepare, and Company shall file with the SEC preliminary proxy materials relating to a meeting of Company's stockholders to consider the Merger (the "Company Stockholders Meeting") and the vote of the stockholders of Company with respect to the Merger. In the event that Parent fails to obtain the Parent Stockholder Approval at the June 25 Meeting (as defined in Section 5.7), Parent shall file with the SEC preliminary proxy materials (which may be contained in a joint proxy statement/prospectus together with the 33 39 preliminary proxy materials relating to the Company Stockholders Meeting) relating to the Parent Stockholders Meeting (as defined in Section 7.1(f)) and the vote of the stockholders of Parent with respect to the proposed increase in authorized capital stock of Parent described in Section 6.1(a). As soon as practicable following receipt of SEC comments on the proxy statement/ prospectus (or joint proxy statement/prospectus or proxy statement for the Parent Stockholders Meeting, as the case may be) to be sent to the stockholders of Company in connection with the Company Stockholders Meeting and, if applicable, the Stockholders of Parent in connection with the Parent Stockholders Meeting (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 sent as aforesaid, the "Proxy Statement"; and, together with any separate proxy statement relating to the Parent Stockholders Meeting, the "Proxy Statements"), Company shall file with the SEC definitive proxy materials relating to the Company Stockholders Meeting and Parent shall file with the SEC a registration statement on Form S-4 (or such other successor form as shall be appropriate) pursuant to which the shares of Parent Common Stock to be issued in the Merger will be registered with the SEC (the "Registration Statement"), which 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 distributed to holders of Company Common Stock pursuant to the Merger; in the event that Parent fails to obtain the Parent Stockholder Approval at the June 25 Meeting, Parent shall also file with the SEC definitive proxy materials relating thereto and shall include the Proxy Statements (in the case of a joint proxy statement/prospectus) in the Registration Statement. Each of Parent and Company shall use its reasonable best efforts to have or cause the Registration Statement to become effective (including clearing the Proxy Statement or Proxy Statements, as the case may be, with the SEC) as promptly as practicable, and shall take any and all actions required under any applicable federal or state securities laws or blue sky laws in connection with the issuance of Parent Common Stock pursuant to the Merger. Without limiting the generality of the foregoing, on the one hand, each of Parent and Company shall (i) notify the other as promptly as practicable after the receipt by it of any written or oral comments of the SEC on, or of any written or oral request by the SEC or any other governmental official for amendments or supplements to, or any other filing or supplemental or additional information relating to, the Proxy Statement (or Proxy Statements, as the case may be) or the Registration Statement, and shall promptly supply the other with copies of all correspondence between it or any of its representatives, on the one hand, and the SEC or any other governmental official, on the other hand, with respect to any of the foregoing filings, and (ii) use all reasonable efforts, after consultation with the other such party, to respond promptly to any comments made by the SEC with respect to the Proxy Statement or Proxy Statements, as the case may be (including each preliminary version thereof), and the Registration Statement (including each amendment thereof and supplement thereto). As promptly as practicable after the Registration Statement shall have become effective, each of Company and Parent shall mail or cause to be mailed its Proxy Statement (if any, in the case of Parent) to its stockholders.
(b) Parent and Company shall each cause the Registration Statement and the Proxy Statement (or Proxy Statements, as the case may be) to comply in all material respects with the Securities Act, the Exchange Act and all other applicable federal and state securities law requirements. Each of Parent and Company shall, and shall cause its respective representatives to, fully cooperate with the other such party and its respective representatives in the preparation of the Proxy Statement (or Proxy Statements, as the case may be) and the Registration Statement, and shall provide promptly to the other such information concerning it and its affiliates, directors, officers and stockholders as the other may reasonably request in connection with the preparation of the Proxy Statement or Proxy Statements, as the case may be, and the Registration Statement. If at any time prior to the Effective Time Company or Parent shall become aware of any fact, event or circumstance that is required to be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement (or Proxy Statements, as the case may be), Company or Parent, as the case may be, shall promptly notify the other of such fact, event or circumstance and the parties shall cooperate with each other in filing with the SEC or any other governmental official, and (in the case of a supplement to the Proxy Statement or Proxy Statements, as the case may be) mailing to stockholders of Company, such amendment or supplement.
(c) The Proxy Statement (or Proxy Statements, as the case may be) shall contain the unanimous recommendation of the Board of Directors of Company that the Company stockholders approve this Agreement and the Merger and the conclusion of the Board of Directors that the terms and conditions of the Merger are advisable and fair to, and in the best interests of, the stockholders of Company; provided that no such recommendation need be included, and any such -------- recommendation may be withdrawn if previously included, if a Superior Proposal has been made and Company and Company's Board of Directors withdraw or modify such recommendation in compliance with, and otherwise have complied in all respects with, Section 4.4. Notwithstanding anything to the contrary contained herein, Company shall not include in the Proxy Statement any information with respect to Parent or its affiliates or associates, the form and content of which information shall not have been approved by Parent prior to such inclusion (which consent will not be unreasonably withheld or delayed).
(d) In the event that a Proxy Statement relating to the Parent Stockholders Meeting is required hereunder, such Proxy Statement shall contain the unanimous recommendation of the Board of Directors of Parent that the Parent stockholders approve the increase in authorized capital stock described in Section 6.1(a); provided that such recommendation may be withdrawn upon a notice -------- of termination of this Agreement pursuant hereto.
(e) Company agrees that: (i) the information supplied by Company for inclusion in the registration statement shall not at the time the Registration Statement (including any amendments or supplements thereto) is declared effective by the SEC or at the Effective Time contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) the information supplied by Company for inclusion in the Proxy Statement relating to the Company Stockholders Meeting shall not, on the date the Proxy Statement relating to the Company Stockholders Meeting is first mailed to the stockholders of Company or at the time of the Company Stockholders Meeting, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading; and (iii) if at any time prior to the Effective Time any event or information should be discovered by Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, Company shall promptly inform Parent of such event or information. Notwithstanding the foregoing, Company makes no representation, warranty or covenant with respect to any information supplied by Parent or Merger Sub which is contained in any of the foregoing documents.
(f) Parent agrees that: (i) the information supplied by Parent for inclusion in the Registration Statement shall not at the time the Registration Statement (including any amendments or supplements thereto) is declared effective by the SEC or at the Effective Time contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) the information supplied by Parent for inclusion in the Proxy Statement relating to the Company Stockholders Meeting shall not, on the date such Proxy Statement is first mailed to Company's stockholders or at the time of the Company Stockholders Meeting, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which it is made, not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading and (iii) if at any time prior to the Effective Time any event or information should be discovered by Parent which should be set forth in an amendment to the Registration Statement or in a supplement to such Proxy Statement, Parent will promptly inform Company of such event or information. Notwithstanding the foregoing, neither Parent nor Merger Sub makes any representation, warranty or covenant with respect to any information supplied by or on behalf of Company or any of its affiliates which is contained in any of the foregoing documents.the
Appears in 1 contract
Registration Statement; Proxy Statements. (a) As soon promptly as practicable after the execution of this Agreement, Company and Parent shall prepare, and the Company shall prepare and file with the SEC preliminary proxy materials relating to a meeting of Company's stockholders to consider the Merger (the "Company Stockholders Meeting") and the vote of the stockholders of Company with respect to the Merger. In the event that Parent fails to obtain the Parent Stockholder Approval at the June 25 Meeting (as defined in Section 5.7), Parent shall file with the SEC preliminary proxy materials (which may be contained in a joint proxy statement/prospectus together with the preliminary proxy materials relating to the Company Stockholders Meeting) relating to the Parent Stockholders Meeting (as defined in Section 7.1(f)) and the vote of the stockholders of Parent with respect to the proposed increase in authorized capital stock of Parent described in Section 6.1(a). As soon as practicable following receipt of SEC comments on the proxy statement/ prospectus (or joint proxy statement/prospectus or proxy statement for the Parent Stockholders Meeting, as the case may be) to be sent to the stockholders of Company in connection with the Company Stockholders Meeting and, if applicable, the Stockholders of Parent in connection with the Parent Stockholders Meeting (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 sent as aforesaid, the "Company Proxy Statement"; and, together with any separate proxy statement ) relating to the meetings of the Company's stockholders (the "Company Stockholders' Meeting") to be held to consider approval of this Agreement and the transactions contemplated hereby. Parent Stockholders Meetingshall promptly furnish all information concerning itself as the Company may reasonably request in connection with such actions and the preparation of the Registration Statement and the Company Proxy Statement. As promptly as practicable after the applicable requirements of the SEC have been satisfied, the Company shall mail the Company Proxy Statement to its stockholders. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Company Proxy Statement prior to its being filed with the SEC.
(b) As promptly as practicable after the execution of this Agreement, Parent and the Company will use reasonable best efforts to obtain a no-action letter from the SEC to permit registration of the Parent OBSAs on a registration statement on Form F-4 without compliance with the Trust Indenture Act of 1939 (the "Proxy StatementsTrust Indenture Act"). If such no-action letter is granted, Company shall file with the SEC definitive proxy materials relating to the Company Stockholders Meeting and Parent shall prepare and file with the SEC a registration statement on Form S-4 (or such other successor form as shall be appropriate) pursuant to which the shares of Parent Common Stock to be issued in the Merger will be registered with the SEC (the "Registration Statement"), which shall include the Proxy Statement as a prospectus, in connection with F-4 for the registration under the Securities Act of the shares of Parent Common Stock Ordinary Shares, Parent OBSAs and Parent ORAs to be distributed to holders of Company Common Stock issued pursuant to the Merger; . If such no-action letter is not granted, then at the option of the Company either (i) if permitted under applicable Law, the offer and sale of Parent Ordinary Shares, Parent OBSAs and Parent ORAs will not be registered under the Securities Act, but shall be made in a private placement in reliance upon the exemption from registration provided by Regulation D promulgated thereunder or (ii) Parent shall prepare and file a registration statement on Form F-4 for the registration under the Securities Act of Parent Ordinary Shares, Parent OBSAs and Parent ORAs, and the form and terms of the Parent OBSAs shall be modified as necessary to comply with the Trust Indenture Act.
(c) In the event that Parent fails to obtain a registration statement on Form F-4 (together with all amendments thereto, the Parent Stockholder Approval at the June 25 Meeting, Parent shall also file with the SEC definitive proxy materials relating thereto and shall include the Proxy Statements (in the case of a joint proxy statement/prospectus) in the "Registration Statement. Each ") is filed, (i) each of Parent and the Company shall use its reasonable best efforts to have or cause the Registration Statement to become effective (including clearing the Proxy Statement or Proxy Statements, as the case may be, with the SEC) as promptly as practicable, and (ii) prior to the effective date of the Registration Statement, Parent shall take all or any and all actions action required under any applicable U.S. federal or state and non-U.S. securities laws or blue sky laws in connection with the issuance of Parent Common Stock Ordinary Shares, Parent ORAs and Parent OBSAs pursuant to the Merger. Without limiting Merger and (iii) the generality of the foregoing, on the one hand, each of Parent and Company shall (i) notify the other as promptly as practicable after the receipt by it of any written or oral comments of the SEC on, or of any written or oral request by the SEC or any other governmental official for amendments or supplements to, or any other filing or supplemental or additional information relating to, the Proxy Statement (or Proxy Statements, as the case may be) or the Registration Statement, and shall promptly supply the other with copies of furnish all correspondence between it or any of its representatives, on the one hand, and the SEC or any other governmental official, on the other hand, with respect to any of the foregoing filings, and (ii) use all reasonable efforts, after consultation with the other such party, to respond promptly to any comments made by the SEC with respect to the Proxy Statement or Proxy Statements, as the case may be (including each preliminary version thereof), and the Registration Statement (including each amendment thereof and supplement thereto). As promptly as practicable after the Registration Statement shall have become effective, each of Company and Parent shall mail or cause to be mailed its Proxy Statement (if any, in the case of Parent) to its stockholders.
(b) Parent and Company shall each cause the Registration Statement and the Proxy Statement (or Proxy Statements, as the case may be) to comply in all material respects with the Securities Act, the Exchange Act and all other applicable federal and state securities law requirements. Each of Parent and Company shall, and shall cause its respective representatives to, fully cooperate with the other such party and its respective representatives in the preparation of the Proxy Statement (or Proxy Statements, as the case may be) and the Registration Statement, and shall provide promptly to the other such information concerning it and its affiliates, directors, officers and stockholders itself as the other Parent may reasonably request in connection with such actions and the preparation of the Proxy Statement or Proxy Statements, as the case may be, and the Registration Statement. If at any time prior to the Effective Time Company or Parent shall become aware of any fact, event or circumstance that is required to be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement (or Proxy Statements, as the case may be), Company or Parent, as the case may be, shall promptly notify the other of such fact, event or circumstance and the parties shall cooperate with each other in filing with the SEC or any other governmental official, and (in the case of a supplement to the Proxy Statement or Proxy Statements, as the case may be) mailing to stockholders of Company, such amendment or supplement.
(c) The Proxy Statement (or Proxy Statements, as the case may be) shall contain the unanimous recommendation of the Board of Directors of Company that the Company stockholders approve this Agreement and the Merger and the conclusion of the Board of Directors that the terms and conditions of the Merger are advisable and fair to, and in the best interests of, the stockholders of Company; provided that no such recommendation need be included, and any such -------- recommendation may be withdrawn if previously included, if a Superior Proposal has been made and Company and Company's Board of Directors withdraw or modify such recommendation in compliance with, and otherwise have complied in all respects with, Section 4.4. Notwithstanding anything to the contrary contained herein, Company shall not include in the Proxy Statement any information with respect to Parent or its affiliates or associates, the form and content of which information shall not have been approved by Parent prior to such inclusion (which consent will not be unreasonably withheld or delayed).
(d) In the event that of a private placement, (i) Parent shall take all or any action required under any applicable U.S. federal or state and non-U.S. securities laws to permit the issuance of Parent Ordinary Shares, Parent ORAs and Parent OBSAs pursuant to the Merger in accordance with such laws without registration under the Securities Act and (ii) if at any time after the Closing any former holder of Shares (other than any such holder who is an affiliate of Parent at such time) proposes to resell, in a manner consistent with the terms of Exhibit A, Parent Ordinary Shares, Parent ORAs or the warrant portion of the Parent OBSAs outside the United States but, in the opinion of counsel to such holder, cannot do so in reliance on Regulation S or any other exemption from registration under the Securities Act, Parent shall register such securities pursuant to the Securities Act to permit such person to resell such securities.
(e) As promptly as practicable after the execution of this Agreement, (i) Parent shall prepare, file, publish, make available and/or mail to Parent Shareholders, as applicable, the resolutions related to the Parent Proposals, the rapport du directoire et du conseil de surveillance a l'assemblee, the rapports des commissaires and the note d'operation (together with any amendments thereof or supplements thereto, the "Parent Proxy Statement Statement" and, together with the Company Proxy Statement, the "Proxy Statements") relating to the meeting of Parent's shareholders (the "Parent Stockholders Shareholders' Meeting" and, together with the Company Stockholders' Meeting, the "Shareholders' Meetings") to be held to consider approval of the Parent Proposals (as defined in Section 6.02); and (ii) Parent shall prepare and file with the COB all filings required by COB regulations (the "Other Parent Filings") in connection with the Parent Shareholders' Meeting is required hereunderto be held to consider approval of the Parent Proposals. The Company shall promptly furnish all information concerning the Company as Parent may reasonably request in connection with such actions and the preparation of the Parent Proxy Statement and the Other Parent Filings. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Registration Statement, such the Parent Proxy Statement and the Other Parent Filings prior to them being filed with the applicable agency.
(f) The Company Proxy Statement shall contain include the unanimous recommendation of the Board of Directors of Parent the Company to the shareholders of the Company in favor of approval of this Agreement; provided, however, that the Parent stockholders approve Board of Directors of the increase in authorized capital stock described in Section 6.1(a); provided that Company may, at any time prior to the Effective Time, withdraw, modify or change any such recommendation may be withdrawn upon a notice -------- to the extent that the Board of termination Directors of this Agreement pursuant heretothe Company determines in good faith after consultation with independent legal counsel that the failure to so withdraw, modify or change its recommendation would cause the Board of Directors of the Company to breach its fiduciary duties to the Company's shareholders under applicable Law.
(eg) The Parent Proxy Statement shall include the recommendation of the Supervisory Board and the Management Board of Parent to the shareholders of Parent in favor of the Parent Proposals; provided, however, that the Supervisory Board or the Management Board of Parent may, at any time prior to the Effective Time, withdraw, modify or change any such recommendation to the extent that the Supervisory Board or the Management Board of Parent determines in good faith after consultation with independent legal counsel that the failure to so withdraw, modify or change its recommendation would cause the Supervisory Board or the Management Board of Parent to breach its fiduciary duties to Parent's shareholders under applicable Law.
(h) No amendment or supplement to the Company agrees that: Proxy Statement or the Registration Statement will be made by the Company or Parent without the approval of the other party (such approval not to be unreasonably withheld or delayed). Parent and the Company each will advise the other, promptly after they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order, of the suspension of the qualification of Parent Ordinary Shares, Parent ORAs or Parent OBSAs issuable in connection with the Merger for offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Registration Statement or the Company Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information.
(i) the The information supplied by Company Parent for inclusion in the registration statement Registration Statement and the Company Proxy Statement shall not not, at (i) the time the Registration Statement is declared effective, (including ii) the time the Company Proxy Statement (or any amendments amendment thereof or supplements supplement thereto) is declared effective by first mailed to the SEC or at stockholders of the Company, (iii) the time of the Company Stockholders' Meeting and (iv) the Effective Time Time, contain any untrue statement of a material fact or omit 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, (ii) the information supplied by Company for inclusion in the Proxy Statement relating to the Company Stockholders Meeting shall not, on the date the Proxy Statement relating to the Company Stockholders Meeting is first mailed to the stockholders of Company or at the time of the Company Stockholders Meeting, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading; and (iii) if at any time prior to the Effective Time Time, any event or information circumstance relating to Parent or any Parent Subsidiary, or their respective officers or directors, should be discovered by Company Parent which should be set forth in an amendment or a supplement to the Registration Statement or a supplement to the Company Proxy Statement, Company Parent shall promptly inform the Company. All documents that Parent 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 aspects with the applicable requirements of such event or information. Notwithstanding the foregoing, Company makes no representation, warranty or covenant with respect to any Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(j) The information supplied by Parent or Merger Sub which is contained in any of the foregoing documents.
(f) Parent agrees that: (i) the information supplied by Parent Company for inclusion in the Registration Statement and the Company Proxy Statement shall not not, at (i) the time the Registration Statement is declared effective, (including ii) the time the Company Proxy Statement (or any amendments amendment thereof or supplements supplement thereto) is declared effective by first mailed to the SEC or at stockholders of the Company, (iii) the time of the Company Stockholders' Meeting, and (iv) the Effective Time Time, contain any untrue statement of a material fact or omit 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; . The information supplied by the Company for inclusion in the Parent Proxy Statement shall not, at (i) the time the Parent Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent, and (ii) the time of the Parent Stockholders' Meeting, and the information supplied by Parent the Company for inclusion in the Proxy Statement relating to Other Parent Filings at the Company Stockholders Meeting time such Other Parent Filings are filed with the COB shall not, on the date such Proxy Statement is first mailed to Company's stockholders or at the time of the Company Stockholders Meeting, contain any untrue statement which, at such time, is false of a material fact or misleading with respect to any material fact, or omit 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 it is they were made, not false or misleading. If, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading and (iii) if at any time prior to the Effective Time Time, any event or information circumstance relating to the Company or any Company Subsidiary, or their respective officers or directors, should be discovered by Parent the Company which should be set forth in an amendment or a supplement to the Registration Statement or in a supplement to such Proxy Statement, the Proxy Statements or the Other Parent will Filings, the Company shall promptly inform Parent. All documents that the Company of such event is responsible for filing with the SEC in connection with the Merger or information. Notwithstanding the foregoing, neither Parent nor Merger Sub makes any representation, warranty or covenant other transactions contemplated by this Agreement will comply as to form and substance in all material respects with respect to any information supplied by or on behalf of Company or any of its affiliates which is contained in any the applicable requirements of the foregoing documentsSecurities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
Appears in 1 contract
Sources: Merger Agreement (Bcom3 Group Inc)
Registration Statement; Proxy Statements. (a) As soon promptly as practicable after the execution of this Agreement, Company and Parent shall prepare, and the Company shall prepare and file with the SEC preliminary proxy materials relating to a meeting of Company's stockholders to consider the Merger (the "Company Stockholders Meeting") and the vote of the stockholders of Company with respect to the Merger. In the event that Parent fails to obtain the Parent Stockholder Approval at the June 25 Meeting (as defined in Section 5.7), Parent shall file with the SEC preliminary proxy materials (which may be contained in a joint proxy statement/prospectus together with the preliminary proxy materials relating to the Company Stockholders Meeting) relating to the Parent Stockholders Meeting (as defined in Section 7.1(f)) and the vote of the stockholders of Parent with respect to the proposed increase in authorized capital stock of Parent described in Section 6.1(a). As soon as practicable following receipt of SEC comments on the proxy statement/ prospectus (or joint proxy statement/prospectus or proxy statement for the Parent Stockholders Meeting, as the case may be) to be sent to the stockholders of Company in connection with the Company Stockholders Meeting and, if applicable, the Stockholders of Parent in connection with the Parent Stockholders Meeting (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 sent as aforesaid, the "Proxy StatementCOMPANY PROXY STATEMENT"; and, together with any separate proxy statement ) relating to the meetings of the Company's stockholders (the "COMPANY STOCKHOLDERS' MEETING") to be held to consider approval of this Agreement and the transactions contemplated hereby. Parent Stockholders Meetingshall promptly furnish all information concerning itself as the Company may reasonably request in connection with such actions and the preparation of the Registration Statement and the Company Proxy Statement. As promptly as practicable after the applicable requirements of the SEC have been satisfied, the Company shall mail the Company Proxy Statement to its stockholders. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Company Proxy Statement prior to its being filed with the SEC.
(b) As promptly as practicable after the execution of this Agreement, Parent and the Company will use reasonable best efforts to obtain a no-action letter from the SEC to permit registration of the Parent OBSAs on a registration statement on Form F-4 without compliance with the Trust Indenture Act of 1939 (the "Proxy StatementsTRUST INDENTURE ACT"). If such no-action letter is granted, Company shall file with the SEC definitive proxy materials relating to the Company Stockholders Meeting and Parent shall prepare and file with the SEC a registration statement on Form S-4 (or such other successor form as shall be appropriate) pursuant to which the shares of Parent Common Stock to be issued in the Merger will be registered with the SEC (the "Registration Statement"), which shall include the Proxy Statement as a prospectus, in connection with F-4 for the registration under the Securities Act of the shares of Parent Common Stock Ordinary Shares, Parent OBSAs and Parent ORAs to be distributed to holders of Company Common Stock issued pursuant to the Merger; . If such no-action letter is not granted, then at the option of the Company either (i) if permitted under applicable Law, the offer and sale of Parent Ordinary Shares, Parent OBSAs and Parent ORAs will not be registered under the Securities Act, but shall be made in a private placement in reliance upon the exemption from registration provided by Regulation D promulgated thereunder or (ii) Parent shall prepare and file a registration statement on Form F-4 for the registration under the Securities Act of Parent Ordinary Shares, Parent OBSAs and Parent ORAs, and the form and terms of the Parent OBSAs shall be modified as necessary to comply with the Trust Indenture Act.
(c) In the event that Parent fails to obtain a registration statement on Form F-4 (together with all amendments thereto, the Parent Stockholder Approval at the June 25 Meeting"REGISTRATION STATEMENT") is filed, Parent shall also file with the SEC definitive proxy materials relating thereto and shall include the Proxy Statements (in the case of a joint proxy statement/prospectusi) in the Registration Statement. Each each of Parent and the Company shall use its reasonable best efforts to have or cause the Registration Statement to become effective (including clearing the Proxy Statement or Proxy Statements, as the case may be, with the SEC) as promptly as practicable, and (ii) prior to the effective date of the Registration Statement, Parent shall take all or any and all actions action required under any applicable U.S. federal or state and non-U.S. securities laws or blue sky laws in connection with the issuance of Parent Common Stock Ordinary Shares, Parent ORAs and Parent OBSAs pursuant to the Merger. Without limiting Merger and (iii) the generality of the foregoing, on the one hand, each of Parent and Company shall (i) notify the other as promptly as practicable after the receipt by it of any written or oral comments of the SEC on, or of any written or oral request by the SEC or any other governmental official for amendments or supplements to, or any other filing or supplemental or additional information relating to, the Proxy Statement (or Proxy Statements, as the case may be) or the Registration Statement, and shall promptly supply the other with copies of furnish all correspondence between it or any of its representatives, on the one hand, and the SEC or any other governmental official, on the other hand, with respect to any of the foregoing filings, and (ii) use all reasonable efforts, after consultation with the other such party, to respond promptly to any comments made by the SEC with respect to the Proxy Statement or Proxy Statements, as the case may be (including each preliminary version thereof), and the Registration Statement (including each amendment thereof and supplement thereto). As promptly as practicable after the Registration Statement shall have become effective, each of Company and Parent shall mail or cause to be mailed its Proxy Statement (if any, in the case of Parent) to its stockholders.
(b) Parent and Company shall each cause the Registration Statement and the Proxy Statement (or Proxy Statements, as the case may be) to comply in all material respects with the Securities Act, the Exchange Act and all other applicable federal and state securities law requirements. Each of Parent and Company shall, and shall cause its respective representatives to, fully cooperate with the other such party and its respective representatives in the preparation of the Proxy Statement (or Proxy Statements, as the case may be) and the Registration Statement, and shall provide promptly to the other such information concerning it and its affiliates, directors, officers and stockholders itself as the other Parent may reasonably request in connection with such actions and the preparation of the Proxy Statement or Proxy Statements, as the case may be, and the Registration Statement. If at any time prior to the Effective Time Company or Parent shall become aware of any fact, event or circumstance that is required to be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement (or Proxy Statements, as the case may be), Company or Parent, as the case may be, shall promptly notify the other of such fact, event or circumstance and the parties shall cooperate with each other in filing with the SEC or any other governmental official, and (in the case of a supplement to the Proxy Statement or Proxy Statements, as the case may be) mailing to stockholders of Company, such amendment or supplement.
(c) The Proxy Statement (or Proxy Statements, as the case may be) shall contain the unanimous recommendation of the Board of Directors of Company that the Company stockholders approve this Agreement and the Merger and the conclusion of the Board of Directors that the terms and conditions of the Merger are advisable and fair to, and in the best interests of, the stockholders of Company; provided that no such recommendation need be included, and any such -------- recommendation may be withdrawn if previously included, if a Superior Proposal has been made and Company and Company's Board of Directors withdraw or modify such recommendation in compliance with, and otherwise have complied in all respects with, Section 4.4. Notwithstanding anything to the contrary contained herein, Company shall not include in the Proxy Statement any information with respect to Parent or its affiliates or associates, the form and content of which information shall not have been approved by Parent prior to such inclusion (which consent will not be unreasonably withheld or delayed).
(d) In the event that of a private placement, (i) Parent shall take all or any action required under any applicable U.S. federal or state and non-U.S. securities laws to permit the issuance of Parent Ordinary Shares, Parent ORAs and Parent OBSAs pursuant to the Merger in accordance with such laws without registration under the Securities Act and (ii) if at any time after the Closing any former holder of Shares (other than any such holder who is an affiliate of Parent at such time) proposes to resell, in a manner consistent with the terms of EXHIBIT A, Parent Ordinary Shares, Parent ORAs or the warrant portion of the Parent OBSAs outside the United States but, in the opinion of counsel to such holder, cannot do so in reliance on Regulation S or any other exemption from registration under the Securities Act, Parent shall register such securities pursuant to the Securities Act to permit such person to resell such securities.
(e) As promptly as practicable after the execution of this Agreement, (i) Parent shall prepare, file, publish, make available and/or mail to Parent Shareholders, as applicable, the resolutions related to the Parent Proposals, the RAPPORT DU DIRECTOIRE ET DU CONSEIL DE SURVEILLANCE A L'ASSEMBLEE, the RAPPORTS DES COMMISSAIRES and the NOTE D'OPERATION (together with any amendments thereof or supplements thereto, the "PARENT PROXY STATEMENT" and, together with the Company Proxy Statement Statement, the "PROXY STATEMENTS") relating to the meeting of Parent's shareholders (the "PARENT SHAREHOLDERS' MEETING" and, together with the Company Stockholders' Meeting, the "SHAREHOLDERS' MEETINGS") to be held to consider approval of the Parent Stockholders Proposals (as defined in Section 6.02); and (ii) Parent shall prepare and file with the COB all filings required by COB regulations (the "OTHER PARENT FILINGS") in connection with the Parent Shareholders' Meeting is required hereunderto be held to consider approval of the Parent Proposals. The Company shall promptly furnish all information concerning the Company as Parent may reasonably request in connection with such actions and the preparation of the Parent Proxy Statement and the Other Parent Filings. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Registration Statement, such the Parent Proxy Statement and the Other Parent Filings prior to them being filed with the applicable agency.
(f) The Company Proxy Statement shall contain include the unanimous recommendation of the Board of Directors of Parent the Company to the shareholders of the Company in favor of approval of this Agreement; PROVIDED, HOWEVER, that the Parent stockholders approve Board of Directors of the increase in authorized capital stock described in Section 6.1(a); provided that Company may, at any time prior to the Effective Time, withdraw, modify or change any such recommendation may be withdrawn upon a notice -------- to the extent that the Board of termination Directors of this Agreement pursuant heretothe Company determines in good faith after consultation with independent legal counsel that the failure to so withdraw, modify or change its recommendation would cause the Board of Directors of the Company to breach its fiduciary duties to the Company's shareholders under applicable Law.
(eg) The Parent Proxy Statement shall include the recommendation of the Supervisory Board and the Management Board of Parent to the shareholders of Parent in favor of the Parent Proposals; PROVIDED, HOWEVER, that the Supervisory Board or the Management Board of Parent may, at any time prior to the Effective Time, withdraw, modify or change any such recommendation to the extent that the Supervisory Board or the Management Board of Parent determines in good faith after consultation with independent legal counsel that the failure to so withdraw, modify or change its recommendation would cause the Supervisory Board or the Management Board of Parent to breach its fiduciary duties to Parent's shareholders under applicable Law.
(h) No amendment or supplement to the Company agrees that: Proxy Statement or the Registration Statement will be made by the Company or Parent without the approval of the other party (such approval not to be unreasonably withheld or delayed). Parent and the Company each will advise the other, promptly after they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order, of the suspension of the qualification of Parent Ordinary Shares, Parent ORAs or Parent OBSAs issuable in connection with the Merger for offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Registration Statement or the Company Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information.
(i) the The information supplied by Company Parent for inclusion in the registration statement Registration Statement and the Company Proxy Statement shall not not, at (i) the time the Registration Statement is declared effective, (including ii) the time the Company Proxy Statement (or any amendments amendment thereof or supplements supplement thereto) is declared effective by first mailed to the SEC or at stockholders of the Company, (iii) the time of the Company Stockholders' Meeting and (iv) the Effective Time Time, contain any untrue statement of a material fact or omit 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, (ii) the information supplied by Company for inclusion in the Proxy Statement relating to the Company Stockholders Meeting shall not, on the date the Proxy Statement relating to the Company Stockholders Meeting is first mailed to the stockholders of Company or at the time of the Company Stockholders Meeting, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading; and (iii) if at any time prior to the Effective Time Time, any event or information circumstance relating to Parent or any Parent Subsidiary, or their respective officers or directors, should be discovered by Company Parent which should be set forth in an amendment or a supplement to the Registration Statement or a supplement to the Company Proxy Statement, Company Parent shall promptly inform the Company. All documents that Parent 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 aspects with the applicable requirements of such event or information. Notwithstanding the foregoing, Company makes no representation, warranty or covenant with respect to any Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(j) The information supplied by Parent or Merger Sub which is contained in any of the foregoing documents.
(f) Parent agrees that: (i) the information supplied by Parent Company for inclusion in the Registration Statement and the Company Proxy Statement shall not not, at (i) the time the Registration Statement is declared effective, (including ii) the time the Company Proxy Statement (or any amendments amendment thereof or supplements supplement thereto) is declared effective by first mailed to the SEC or at stockholders of the Company, (iii) the time of the Company Stockholders' Meeting, and (iv) the Effective Time Time, contain any untrue statement of a material fact or omit 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; . The information supplied by the Company for inclusion in the Parent Proxy Statement shall not, at (i) the time the Parent Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent, and (ii) the time of the Parent Stockholders' Meeting, and the information supplied by Parent the Company for inclusion in the Proxy Statement relating to Other Parent Filings at the Company Stockholders Meeting time such Other Parent Filings are filed with the COB shall not, on the date such Proxy Statement is first mailed to Company's stockholders or at the time of the Company Stockholders Meeting, contain any untrue statement which, at such time, is false of a material fact or misleading with respect to any material fact, or omit 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 it is they were made, not false or misleading. If, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading and (iii) if at any time prior to the Effective Time Time, any event or information circumstance relating to the Company or any Company Subsidiary, or their respective officers or directors, should be discovered by Parent the Company which should be set forth in an amendment or a supplement to the Registration Statement or in a supplement to such Proxy Statement, the Proxy Statements or the Other Parent will Filings, the Company shall promptly inform Parent. All documents that the Company of such event is responsible for filing with the SEC in connection with the Merger or information. Notwithstanding the foregoing, neither Parent nor Merger Sub makes any representation, warranty or covenant other transactions contemplated by this Agreement will comply as to form and substance in all material respects with respect to any information supplied by or on behalf of Company or any of its affiliates which is contained in any the applicable requirements of the foregoing documentsSecurities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
Appears in 1 contract
Registration Statement; Proxy Statements. (a) As soon promptly as practicable after the execution of this Agreement, Company Key shall prepare and Parent shall prepare, and Company shall file with the SEC preliminary a registration statement on Form S-4 (such registration statement, together with any amendments thereof or supplements thereto, being the "Registration Statement"), containing a proxy materials relating to a meeting statement/prospectus for stockholders of Company's stockholders to consider the Merger ▇▇▇▇▇ (the "Company Stockholders Meeting▇▇▇▇▇ Proxy Statement/Prospectus") and a proxy statement and form of proxy for stockholders of Key (together with any amendments thereof or supplements thereto, in each case in the form or forms mailed to Key's stockholders, the "Key Proxy Statement"), in connection with the registration under the Securities Act of the offer and sale of Key Common Stock to be issued in the Merger and the other transactions contemplated by this Agreement. As promptly as practicable after the execution of this Agreement, ▇▇▇▇▇ shall prepare and file with the SEC a proxy statement that will be the same as the ▇▇▇▇▇ Proxy Statement/Prospectus, and a form of proxy, in connection with the vote of the ▇▇▇▇▇'▇ stockholders of Company with respect to the Merger. In the event that Parent fails to obtain the Parent Stockholder Approval at the June 25 Meeting (as defined in Section 5.7), Parent shall file with the SEC preliminary proxy materials (which may be contained in a joint proxy statement/prospectus together with the preliminary proxy materials relating to the Company Stockholders Meeting) relating to the Parent Stockholders Meeting (as defined in Section 7.1(f)) and the vote of the stockholders of Parent with respect to the proposed increase in authorized capital stock of Parent described in Section 6.1(a). As soon as practicable following receipt of SEC comments on the proxy statement/ prospectus (or joint proxy statement/prospectus or proxy statement for the Parent Stockholders Meeting, as the case may be) to be sent to the stockholders of Company in connection with the Company Stockholders Meeting and, if applicable, the Stockholders of Parent in connection with the Parent Stockholders Meeting Merger (such proxy statement/prospectus or joint proxy statement/prospectus (as the case may be)statement and form of proxy, together with any amendments thereof or supplements thereto, in each case in the form or forms sent as aforesaidmailed to ▇▇▇▇▇'▇ stockholders, being the "▇▇▇▇▇ Proxy Statement"; and, together with any separate proxy statement relating to the Parent Stockholders Meeting, the "Proxy Statements"), Company shall file with the SEC definitive proxy materials relating to the Company Stockholders Meeting and Parent shall file with the SEC a registration statement on Form S-4 (or such other successor form as shall be appropriate) pursuant to which the shares of Parent Common Stock to be issued in the Merger will be registered with the SEC (the "Registration Statement"), which 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 distributed to holders of Company Common Stock pursuant to the Merger; in the event that Parent fails to obtain the Parent Stockholder Approval at the June 25 Meeting, Parent shall also file with the SEC definitive proxy materials relating thereto and shall include the Proxy Statements (in the case of a joint proxy statement/prospectus) in the Registration Statement. Each of Parent Key and Company shall ▇▇▇▇▇ will use its reasonable best efforts to have or cause the Registration Statement to become be declared effective (including clearing the Proxy Statement or Proxy Statements, as the case may be, with the SEC) as promptly as practicable, and shall take any and all actions action required to be taken under any applicable federal or state securities laws or blue sky laws in connection with the issuance of Parent shares of Key Common Stock pursuant to in the Merger. Without limiting the generality Each of the foregoing, on the one hand, each of Parent Key and Company ▇▇▇▇▇ shall (i) notify furnish to the other as promptly as practicable after all information concerning it and the receipt by it holders of any written or oral comments of the SEC on, or of any written or oral request by the SEC or any other governmental official for amendments or supplements to, or any other filing or supplemental or additional information relating to, the Proxy Statement (or Proxy Statements, its capital stock as the case other may be) or the Registration Statement, and shall promptly supply the other reasonably request in connection with copies of all correspondence between it or any of its representatives, on the one hand, and the SEC or any other governmental official, on the other hand, with respect to any of the foregoing filings, and (ii) use all reasonable efforts, after consultation with the other such party, to respond promptly to any comments made by the SEC with respect to the Proxy Statement or Proxy Statements, as the case may be (including each preliminary version thereof), and the Registration Statement (including each amendment thereof and supplement thereto)actions. As promptly as practicable after the Registration Statement shall have become been declared effective, each of Company and Parent ▇▇▇▇▇ shall mail or cause to be mailed its the ▇▇▇▇▇ Proxy Statement to its stockholders entitled to notice of and to vote at the ▇▇▇▇▇ Stockholders Meeting and Key shall mail the Key Proxy Statement to its stockholders entitled to notice of and to vote at the Key Stockholders Meeting. The ▇▇▇▇▇ Proxy Statement shall include the recommendation of ▇▇▇▇▇'▇ Board of Directors in favor of the Merger and adoption of this Agreement, unless otherwise necessary due to the applicable fiduciary duties of the directors of ▇▇▇▇▇, as determined by such directors in good faith after consultation with and based upon the advice of independent legal counsel (if any, who may be ▇▇▇▇▇'▇ regularly engaged independent legal counsel). The Key Proxy Statement shall include the recommendation of Key's Board of Directors in favor of approval of the issuance of the Key Common Stock in the case of Parent) to its stockholdersMerger.
(b) Parent and Company shall each cause the Registration Statement and the Proxy Statement (or Proxy Statements, as the case may be) to comply in all material respects with the Securities Act, the Exchange Act and all other applicable federal and state securities law requirements. Each of Parent and Company shall, and shall cause its respective representatives to, fully cooperate with the other such party and its respective representatives in the preparation of the Proxy Statement (or Proxy Statements, as the case may be) and the Registration Statement, and shall provide promptly to the other such information concerning it and its affiliates, directors, officers and stockholders as the other may reasonably request in connection with the preparation of the Proxy Statement or Proxy Statements, as the case may be, and the Registration Statement. If at any time prior to the Effective Time Company or Parent shall become aware of any fact, event or circumstance that is required to be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement (or Proxy Statements, as the case may be), Company or Parent, as the case may be, shall promptly notify the other of such fact, event or circumstance and the parties shall cooperate with each other in filing with the SEC or any other governmental official, and (in the case of a supplement to the Proxy Statement or Proxy Statements, as the case may be) mailing to stockholders of Company, such amendment or supplement.
(c) The Proxy Statement (or Proxy Statements, as the case may be) shall contain the unanimous recommendation of the Board of Directors of Company that the Company stockholders approve this Agreement and the Merger and the conclusion of the Board of Directors that the terms and conditions of the Merger are advisable and fair to, and in the best interests of, the stockholders of Company; provided that no such recommendation need be included, and any such -------- recommendation may be withdrawn if previously included, if a Superior Proposal has been made and Company and Company's Board of Directors withdraw or modify such recommendation in compliance with, and otherwise have complied in all respects with, Section 4.4. Notwithstanding anything to the contrary contained herein, Company shall not include in the Proxy Statement any information with respect to Parent or its affiliates or associates, the form and content of which information shall not have been approved by Parent prior to such inclusion (which consent will not be unreasonably withheld or delayed).
(d) In the event that a Proxy Statement relating to the Parent Stockholders Meeting is required hereunder, such Proxy Statement shall contain the unanimous recommendation of the Board of Directors of Parent that the Parent stockholders approve the increase in authorized capital stock described in Section 6.1(a); provided that such recommendation may be withdrawn upon a notice -------- of termination of this Agreement pursuant hereto.
(e) Company agrees that: (i) the information supplied by Company ▇▇▇▇▇ for inclusion in the registration statement Registration Statement shall not not, at the time the Registration Statement is declared effective, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. The information supplied by ▇▇▇▇▇ for inclusion in (including i) the ▇▇▇▇▇ Proxy Statement to be sent to the stockholders of ▇▇▇▇▇ in connection with the ▇▇▇▇▇ Stockholders Meeting shall not, at the date the ▇▇▇▇▇ Proxy Statement (or any amendments or supplements supplement thereto) is declared effective by first mailed to stockholders, at the SEC time of the ▇▇▇▇▇ Stockholders Meeting or at the Effective Time and (ii) the Key Proxy Statement to be sent to the stockholders of Key in connection with the Key Stockholders Meeting shall not, at the date the Key Proxy Statement (or any supplement thereto) is first mailed to stockholders, at the time of the Key Stockholders Meeting or at the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) the information supplied by Company for inclusion in the Proxy Statement relating to the Company Stockholders Meeting shall not, on the date the Proxy Statement relating to the Company Stockholders Meeting is first mailed to the stockholders of Company or at the time of the Company Stockholders Meeting, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading; and (iii) if . If at any time prior to the Effective Time any event or information circumstance relating to ▇▇▇▇▇ or any of its affiliates, or its or their respective officers or directors, should be discovered by Company which ▇▇▇▇▇ that should be set forth in an amendment to the Registration Statement or a supplement to the ▇▇▇▇▇ Proxy Statement or the Key Proxy Statement, Company ▇▇▇▇▇ shall promptly inform Parent Key thereof in writing. All documents that ▇▇▇▇▇ is responsible for filing with the SEC in connection with the transactions contemplated herein will comply as to form in all material respects with the applicable requirements of such event or information. Notwithstanding the foregoing, Company makes no representation, warranty or covenant with respect to any Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(c) The information supplied by Parent or Merger Sub which is contained in any of the foregoing documents.
(f) Parent agrees that: (i) the information supplied by Parent Key for inclusion in the Registration Statement shall not not, at the time the Registration Statement is declared effective, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. The information supplied by Key for inclusion in (including i) the ▇▇▇▇▇ Proxy Statement to be sent to the stockholders of ▇▇▇▇▇ in connection with the ▇▇▇▇▇ Stockholders Meeting shall not, at the date the ▇▇▇▇▇ Proxy Statement (or any amendments or supplements supplement thereto) is declared effective by first mailed to stockholders, at the SEC time of the ▇▇▇▇▇ Stockholders Meeting or at the Effective Time and (ii) the Key Proxy Statement to be sent to the stockholders of Key in connection with the Key Stockholders Meeting shall not, at the date the Key Proxy Statement (or any supplement thereto) is first mailed to stockholders, at the time of the Key Stockholders Meeting or at the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; (ii) the information supplied by Parent for inclusion in the Proxy Statement relating to the Company Stockholders Meeting shall not, on the date such Proxy Statement is first mailed to Company's stockholders or at the time of the Company Stockholders Meeting, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which it is made, not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading and (iii) if . If at any time prior to the Effective Time any event or information circumstance relating to Key or any of its affiliates, or to their respective officers or directors, should be discovered by Parent which Key that should be set forth in an amendment to the Registration Statement or in a supplement to such the ▇▇▇▇▇ Proxy Statement or the Key Proxy Statement, Parent will Key shall promptly inform Company of such event or information▇▇▇▇▇ thereof in writing. Notwithstanding All documents that Key is responsible for filing with the foregoing, neither Parent nor Merger Sub makes any representation, warranty or covenant SEC in connection with respect the transactions contemplated hereby will comply as to any information supplied by or on behalf of Company or any of its affiliates which is contained form in any all material respects with the applicable requirements of the foregoing documentsSecurities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
Appears in 1 contract