Requisite Stockholder Approval. Immediately following the execution of this Agreement, the Company shall solicit written consent from certain of its Stockholders in the form attached hereto as Exhibit E (the “Stockholder Written Consent”), and shall deliver the Stockholder Written Consent, with votes sufficient to achieve the Requisite Stockholder Approval, to Parent within two (2) hours of the execution of this Agreement. The Company shall promptly deliver to Parent a copy of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, promptly after the execution of this Agreement, the Company will receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are sufficient to fully and irrevocably deliver the Requisite Stockholder Approval. Promptly upon obtaining the Requisite Stockholder Approval, the Company shall prepare and, as soon as reasonably practicable, send to all Stockholders on the record date for the Stockholder Written Consents who did not execute a Stockholder Written Consent, a Stockholder Written Consent, a Joinder Agreement and a Lock-Up Agreement, and all other notices required pursuant to Delaware Law and the Company shall use its reasonable best efforts to cause each such Stockholder to execute and deliver such Stockholder Written Consent, Joinder Agreement and Lock-Up Agreement to Parent. Such materials submitted to the Stockholders in connection with such Stockholder Written Consents, Joinder Agreements and Lock-Up Agreements shall (i) include an information statement regarding the Company, the terms of this Agreement, and the Mergers, (ii) the unanimous recommendation of the Company’s Board of Directors that the Stockholders should approve this Agreement, the Mergers and the other Transactions, (iii) such other information as Parent and the Company may mutually agree is required or advisable under applicable Legal Requirements, including the notice contemplated by Section 262 of the DGCL and (iv) be subject to reasonable review, comment and approval in all respects by Parent prior to its submission to any Stockholder (the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the Information Statement will not, on the date the Information Statement is first sent or furnished to the Stockholders, 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. The parties shall update, amend and supplement the Information Statement from time to time as may be required by applicable Legal Requirements. Notwithstanding the foregoing terms of this Section 5.2(a), the Information Statement shall not contain, and Parent shall not be required to provide, any non-public information of or regarding Parent, its Subsidiaries, or its or its Subsidiaries’ businesses, assets, liabilities, financial condition, results of operations or projections. The Board of Directors of the Company shall not alter, modify, change or revoke the Company Recommendation.
Appears in 1 contract
Requisite Stockholder Approval. Immediately following Following the execution of this AgreementClosing, the Company shall solicit written consent from certain agrees to use reasonable best efforts to obtain, at the next meeting (annual or special) of its Stockholders the stockholders of the Company (at which a quorum is present), but in the form attached hereto as Exhibit E no event later than June 30, 2023 (the “Stockholder Written ConsentMeeting”), and shall deliver the Stockholder Written Consent, with votes sufficient to achieve the Requisite Stockholder Approval, to Parent within two Approval (2) hours of the execution of this Agreementas defined below). The Company shall promptly deliver will prepare and file with the SEC a proxy statement to Parent a copy of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, promptly after the execution of this Agreement, the Company will receive Stockholder Written Consents from Stockholders pursuant be sent to the preceding solicitation Company’s stockholders in connection with the Stockholder Meeting (the “Proxy Statement”). The Proxy Statement shall include the Board of Directors’ recommendation that are sufficient to fully and irrevocably deliver the holders of shares of the Company’s Common Stock vote in favor of the Requisite Stockholder Approval. Promptly upon obtaining If the Requisite Stockholder ApprovalApproval is not obtained at or prior to the Stockholder Meeting, the Company shall prepare and, as soon as reasonably practicable, send to all Stockholders on will hold a special meeting of the record date stockholders of the Company for the purposes of obtaining such Requisite Stockholder Written Consents who did not execute a Approval no less often than every ninety (90) days following the date of the Stockholder Written Consent, a Meeting until the Requisite Stockholder Written Consent, a Joinder Agreement and a Lock-Up Agreement, and all other notices required pursuant to Delaware Law and the Company shall use its reasonable best efforts to cause each such Stockholder to execute and deliver such Stockholder Written Consent, Joinder Agreement and Lock-Up Agreement to Parent. Such materials submitted to the Stockholders in connection with such Stockholder Written Consents, Joinder Agreements and Lock-Up Agreements shall (i) include an information statement regarding the Company, the terms of this AgreementApproval is obtained, and the Mergers, (ii) Board of Directors will recommend that the unanimous recommendation holders of shares of the Company’s Board Common Stock vote in favor of Directors that the Stockholders should approve this AgreementRequisite Stockholder Approval at each such meeting. As used herein, “Requisite Stockholder Approval” means the Mergers and the other Transactions, (iii) such other information as Parent and the Company may mutually agree is required or advisable under applicable Legal Requirements, including the notice stockholder approval contemplated by Section 262 of the DGCL and (ivNasdaq Listing Rule 5635(d) be subject to reasonable review, comment and approval in all respects by Parent prior to its submission to any Stockholder (the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the Information Statement will not, on the date the Information Statement is first sent or furnished to the Stockholders, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit the issuance of shares of Common Stock pursuant to state any material fact necessary the Exchange Warrants in order to make the statements made therein, in light excess of the circumstances under which they are madelimitations imposed by such rule; provided, not false however, that the Requisite Stockholder Approval will be deemed to be obtained if, due to any amendment or misleading. The parties shall update, amend and supplement binding change in the Information Statement from time to time as may be required by applicable Legal Requirements. Notwithstanding the foregoing terms of this Section 5.2(a), the Information Statement shall not contain, and Parent shall not be required to provide, any non-public information of or regarding Parent, its Subsidiaries, or its or its Subsidiaries’ businesses, assets, liabilities, financial condition, results of operations or projections. The Board of Directors interpretation of the Company shall not alterapplicable listing standards of the Nasdaq Capital Market, modify, change or revoke such stockholder approval is no longer required for the Company Recommendationto issue shares Common Stock pursuant to the Warrants.
Appears in 1 contract
Requisite Stockholder Approval. Immediately following The Company shall take all action necessary under applicable law to call, give notice of and hold a meeting of the execution holders of Common Stock to consider and vote to approve (a) the conversion of the Series X Preferred Stock issued pursuant to this AgreementAgreement and the Merger Agreement into shares of Common Stock in accordance with Nasdaq Listing Rule 5635(a) and (b) if deemed necessary or appropriate by the Company or as otherwise required by applicable law or Contract, to authorize sufficient shares of Common Stock in the Certificate of Incorporation for the conversion of the Series X Preferred Stock issued pursuant to this Agreement and the Merger Agreement and/or to effectuate a reverse stock split (collectively, the “Charter Amendment Proposal”) pursuant to the terms of the Merger Agreement (collectively, the “Company Stockholder Matters” and such meeting, the “Company Stockholder Meeting”). The Company Stockholder Meeting shall solicit written consent from certain of its Stockholders in be held as promptly as practicable after the form attached hereto as Exhibit E date that the definitive proxy statement relating to the Company Stockholder Meeting (the “Stockholder Written ConsentProxy Statement”)) is filed with the Commission, and shall deliver in any event no later than one hundred and twenty (120) days after the Stockholder Written Consent, with votes sufficient to achieve the Requisite Stockholder Approval, to Parent within two (2) hours closing of the execution of this AgreementMerger. The Company shall promptly deliver take reasonable measures to Parent ensure that all proxies solicited in connection with the Company Stockholder Meeting are solicited in compliance with applicable law. Notwithstanding anything to the contrary contained herein, if on the date of the Company Stockholder Meeting, or a copy of each executed date preceding the date on which the Company Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It Meeting is anticipated that, promptly after the execution of this Agreementscheduled, the Company reasonably believes that (a) it will not receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are proxies sufficient to fully and irrevocably deliver obtain the approval of the holders of Common Stock (the “Requisite Stockholder Approval. Promptly upon obtaining ”), whether or not a quorum would be present or (b) it will not have sufficient shares of Common Stock represented (whether in person or by proxy) to constitute a quorum necessary to conduct the Requisite business of the Company Stockholder ApprovalMeeting, the Company shall prepare andmay postpone or adjourn, as soon as reasonably practicableor make one or more successive postponements or adjournments of, send to all Stockholders on the record date for the Stockholder Written Consents who did not execute a Stockholder Written Consent, a Stockholder Written Consent, a Joinder Agreement and a Lock-Up Agreement, and all other notices required pursuant to Delaware Law and the Company shall use its reasonable best efforts to cause each such Stockholder to execute and deliver such Meeting as long as the date of the Company Stockholder Written Consent, Joinder Agreement and Lock-Up Agreement to Parent. Such materials submitted to the Stockholders Meeting is not postponed or adjourned more than an aggregate of thirty (30) days in connection with such Stockholder Written Consentsany postponements or adjournments. The Company agrees that, Joinder Agreements and Lock-Up Agreements shall (i) include an information statement regarding subject to the Company, the terms Board of this Agreement, and the MergersDirector’s compliance with its fiduciary duties under applicable law, (iia) the unanimous recommendation Board of Directors shall recommend that the holders of Common Stock vote to approve the Company Stockholder Matters and shall use commercially reasonable efforts to solicit such approval within the time frame set forth in this Section 4.11 and (b) the Proxy Statement shall include a statement to the effect that the Board of Directors recommends that the Company’s Board of Directors that the Stockholders should stockholders vote to approve this Agreement, the Mergers and the other Transactions, (iii) such other information as Parent and the Company may mutually agree is required or advisable under applicable Legal Requirements, including the notice contemplated by Section 262 of the DGCL and (iv) be subject to reasonable review, comment and approval in all respects by Parent prior to its submission to any Stockholder (the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the Information Statement will not, on the date the Information Statement is first sent or furnished to the Stockholders, 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. The parties shall update, amend and supplement the Information Statement from time to time as may be required by applicable Legal Requirements. Notwithstanding the foregoing terms of this Section 5.2(a), the Information Statement shall not contain, and Parent shall not be required to provide, any non-public information of or regarding Parent, its Subsidiaries, or its or its Subsidiaries’ businesses, assets, liabilities, financial condition, results of operations or projections. The Board of Directors of the Company shall not alter, modify, change or revoke the Company RecommendationMatters.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Aileron Therapeutics Inc)
Requisite Stockholder Approval. Immediately following the execution of this AgreementOn or before [ l ]1, 2022, the Company shall solicit written consent from certain agrees to use best efforts to obtain the Requisite Stockholder Approval at a special meeting of its Stockholders the stockholders (a “Special Stockholder Meeting”). The Company will prepare and file with the SEC a proxy statement to be sent to the Company’s stockholders in connection with the form attached hereto as Exhibit E Special Stockholder Meeting (the “Stockholder Written ConsentProxy Statement”), and . The Proxy Statement shall deliver include the Stockholder Written Consent, with votes sufficient to achieve Board of Directors’ recommendation that the Requisite Stockholder Approval, to Parent within two (2) hours holders of shares of the execution Company’s Common Stock vote in favor of this Agreement. The Company shall promptly deliver to Parent a copy of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, promptly after the execution of this Agreement, the Company will receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are sufficient to fully and irrevocably deliver the Requisite Stockholder Approval. Promptly upon obtaining If the Requisite Stockholder ApprovalApproval is not obtained on or prior to [ l ]2, 2022, the Company shall prepare and, as soon as reasonably practicable, send to all Stockholders on the record date will hold additional Special Stockholder Meetings for the purposes of obtaining such Requisite Stockholder Written Consents who did not execute a Approval no less often than every ninety (90) days following [ l ]3, 2022 until the Requisite Stockholder Written Consent, a Stockholder Written Consent, a Joinder Agreement and a Lock-Up Agreement, and all other notices required pursuant to Delaware Law and the Company shall use its reasonable best efforts to cause each such Stockholder to execute and deliver such Stockholder Written Consent, Joinder Agreement and Lock-Up Agreement to Parent. Such materials submitted to the Stockholders in connection with such Stockholder Written Consents, Joinder Agreements and Lock-Up Agreements shall (i) include an information statement regarding the Company, the terms of this AgreementApproval is obtained, and the Mergers, (ii) Board of Directors will recommend that the unanimous recommendation holders of shares of the Company’s Board Common Stock vote in favor of Directors that the Stockholders should approve this AgreementRequisite Stockholder Approval at each such meeting. As used herein, “Requisite Stockholder Approval” means the Mergers and the other Transactions, (iii) such other information as Parent and the Company may mutually agree is required or advisable under applicable Legal Requirements, including the notice shareholder approval contemplated by Section 262 of the DGCL and (ivNasdaq Listing Rule 5635(d) be subject to reasonable review, comment and approval in all respects by Parent prior to its submission to any Stockholder (the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the Information Statement will not, on the date the Information Statement is first sent or furnished to the Stockholders, 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 issuance and potential issuance of the circumstances under which they are madeNotes pursuant to this Agreement; provided, not false however, that the Requisite Stockholder Approval will be deemed to be obtained if, due to any amendment or misleading. The parties shall update, amend and supplement binding change in the Information Statement from time to time as may be required by applicable Legal Requirements. Notwithstanding the foregoing terms of this Section 5.2(a), the Information Statement shall not contain, and Parent shall not be required to provide, any non-public information of or regarding Parent, its Subsidiaries, or its or its Subsidiaries’ businesses, assets, liabilities, financial condition, results of operations or projections. The Board of Directors interpretation of the Company shall not alterapplicable listing standards of Nasdaq, modify, change or revoke such stockholder approval is no longer required for the Company Recommendationto issue 1 NTD: To be 90 days post-closing. 2 NTD: To be 90 days post-closing. 3 NTD: To be 90 days post-closing. shares Common Stock pursuant to the Notes.
Appears in 1 contract
Samples: Securities Purchase Agreement (9 Meters Biopharma, Inc.)
Requisite Stockholder Approval. Immediately following the execution of this Agreement, the Company shall solicit written consent from certain of its Stockholders in the form attached hereto as Exhibit E (the “Stockholder Written Consent”), and shall deliver the Stockholder Written Consent, with votes sufficient to achieve the Requisite Stockholder Approval, to Parent within two (2) hours of the execution of this Agreement. The Company shall promptly deliver agrees to Parent a copy of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, promptly after the execution of this Agreement, the Company will receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are sufficient to fully and irrevocably deliver the Requisite Stockholder Approval. Promptly upon obtaining the Requisite Stockholder Approval, the Company shall prepare and, as soon as reasonably practicable, send to all Stockholders on the record date for the Stockholder Written Consents who did not execute a Stockholder Written Consent, a Stockholder Written Consent, a Joinder Agreement and a Lock-Up Agreement, and all other notices required pursuant to Delaware Law and the Company shall use its reasonable best efforts to cause each seek, at a special or annual meeting of the stockholders of the Company to be scheduled to be held no later than January 16, 2024 (the “Stockholder Meeting”), the Requisite Stockholder Approval (as defined below); provided that the Stockholder Meeting may be postponed or adjourned if the Company determines in good faith, with the Holder’s written consent, that such postponement or adjournment is necessary or advisable in order to solicit additional votes or to obtain a quorum to transact business at the Stockholder Meeting. The Company will prepare and file with the United States Securities and Exchange Commission a proxy statement to execute and deliver such Stockholder Written Consent, Joinder Agreement and Lock-Up Agreement to Parent. Such materials submitted be sent to the Stockholders Company’s stockholders in connection with such the Stockholder Written Consents, Joinder Agreements and Lock-Up Agreements shall (i) include an information statement regarding the Company, the terms of this Agreement, and the Mergers, (ii) the unanimous recommendation of the Company’s Board of Directors that the Stockholders should approve this Agreement, the Mergers and the other Transactions, (iii) such other information as Parent and the Company may mutually agree is required or advisable under applicable Legal Requirements, including the notice contemplated by Section 262 of the DGCL and (iv) be subject to reasonable review, comment and approval in all respects by Parent prior to its submission to any Stockholder Meeting (the “Information Proxy Statement”). Each party agrees The Proxy Statement shall include the recommendation of the board of directors of the Company (the “Board”) that information supplied by the holders of shares of Common Stock vote in favor of the Requisite Stockholder Approval. If the Requisite Stockholder Approval is not obtained at or prior to the Stockholder Meeting, the Company will hold an annual or special meeting of the stockholders of the Company for the purposes of obtaining such party for inclusion in the Information Statement will not, on Requisite Stockholder Approval no less often than once per calendar quarter following the date of the Information Statement Stockholder Meeting until the Requisite Stockholder Approval is first sent or furnished to obtained, and the StockholdersBoard will recommend that the holders of shares of Common Stock vote in favor of the Requisite Stockholder Approval at each such meeting. For purposes of this Amendment, contain any statement which, at such time, is false or misleading “Requisite Stockholder Approval” shall mean the stockholder approval contemplated by Nasdaq Listing Rule 5635(d) with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light approval of the circumstances under which they are made, not false or misleading. The parties shall update, amend and supplement the Information Statement from time to time as may be required by applicable Legal Requirements. Notwithstanding the foregoing terms issuance of this Section 5.2(a), the Information Statement shall not contain, and Parent shall not be required to provide, any non-public information shares of or regarding Parent, its Subsidiaries, or its or its Subsidiaries’ businesses, assets, liabilities, financial condition, results of operations or projections. The Board of Directors Common Stock in excess of the Company shall not alterlimitation on the number of shares issuable under the Note as set forth in Section 3.8 of the Note, modify, change or revoke as well as any other shares issuable to the Company RecommendationHolder pursuant to the Purchase Agreement.
Appears in 1 contract
Requisite Stockholder Approval. Immediately Promptly following the execution of this Agreement, in compliance with all Laws and the Company’s Charter Documents, the Company shall solicit the Stockholder Written Consent constituting the Requisite Stockholder Approval substantially concurrently with the execution and delivery of this Agreement. Within ten Business days after execution of this Agreement, the Company shall solicit written consent from certain of its Stockholders in the form attached hereto as Exhibit E (the “Stockholder Written Consent”), and shall deliver the Stockholder Written Consent, with votes sufficient to achieve the Requisite Stockholder Approval, to Parent within two (2) hours of the execution of this Agreement. The Company shall promptly deliver to Parent a copy of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, promptly after the execution of this Agreement, the Company will receive Stockholder Written Consents from Stockholders pursuant to the preceding solicitation that are sufficient to fully and irrevocably deliver the Requisite Stockholder Approval. Promptly upon obtaining the Requisite Stockholder Approvalother holders of Company Common Stock, the Company shall prepare and, as soon as reasonably practicable, send to all Stockholders on the record date for the Stockholder Written Consents who did not execute a Stockholder Written Consent, a Stockholder Written Consent, a Joinder Agreement and a Lock-Up Agreement, and all other notices required pursuant to Delaware Law and the Company shall use its reasonable best efforts to cause each such Stockholder to execute and deliver such Stockholder Written Consent, Joinder Agreement and Lock-Up Agreement to Parent. Such materials submitted to the Stockholders in connection with such Stockholder Written Consents, Joinder Agreements and Lock-Up Agreements shall by delivery of an Information Statement concerning (i) include an information statement regarding the Company, its business, and financial performance (including financial statements), (ii) the terms of this Agreement, (iii) the Mergers and the Mergersother transactions contemplated hereby, (iiiv) notice required by Sections 228(e) and 262 of Delaware Law of the approval of the Mergers and that appraisal rights are available, and (v) the unanimous recommendation of the Company’s Board of Directors that the Stockholders should approve vote in favor of the adoption of this Agreement, the Mergers and the other Transactions, (iii) such other information as Parent transactions contemplated hereby and the Company may mutually agree is required not exercise their appraisal or advisable dissenters rights under applicable Legal RequirementsLaw, including Delaware Law, in connection with the notice contemplated by Section 262 of the DGCL and (iv) be subject to reasonable review, comment and approval in all respects by Parent prior to its submission to any Stockholder First Merger (the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the The Information Statement will not, on the date the Information Statement is first sent or furnished and all other materials submitted to the Stockholders, contain any statement whichStockholders will not contain, at such timeor prior to the First Effective Time, is false or misleading with respect to any untrue statement of a material fact, or and will not 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. The parties Company shall updatepromptly deliver to Acquiror a copy of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. Within two hours after the execution and delivery of this Agreement, amend the Company will deliver to Acquiror the Stockholder Written Consent that are sufficient to fully and supplement irrevocably deliver the Requisite Stockholder Approval. All materials submitted to the Stockholders, including the Information Statement from time Statement, shall be subject to time as may be required by applicable Legal Requirements. Notwithstanding the foregoing terms review and comment of this Section 5.2(a), the Information Statement shall not containAcquiror, and Parent the Company shall not be required consider in good faith any of Acquiror’s reasonable comments to provide, any non-public information of or regarding Parent, its Subsidiaries, or its or its Subsidiaries’ businesses, assets, liabilities, financial condition, results of operations or projectionssuch materials. The Board of Directors of the Company shall not alter, modify, change or revoke its unanimous approval of this Agreement, the Company RecommendationMergers and the other transactions contemplated hereby, nor its unanimous recommendation to the Stockholders to vote in favor of adoption of this Agreement and approval of the Mergers and the other transactions contemplated hereby.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Plan of Reorganization (Pacific Biosciences of California, Inc.)
Requisite Stockholder Approval. Immediately following Following the execution First Subsequent Closing and the Second Subsequent Closing, as applicable, if the exercise price of this the Warrant issued at such Closing shall be below the Minimum Price (as defined in Nasdaq Listing Rule 5635(d)) with respect to such Warrant, as measured with respect to the date of the Securities Purchase Agreement, then the Company shall solicit written consent from certain agrees to use reasonable best efforts to obtain, at the next annual meeting of its Stockholders the stockholders of the Company (at which a quorum is present), but in no event later than the form attached hereto as Exhibit E earlier to occur of (i) one hundred eighty days (180 days) after the issuance of such Warrant or (ii) the first annual meeting of stockholders to take place after the issuance of such Warrant (the “Stockholder Written ConsentMeeting”), and shall deliver the Stockholder Written Consent, with votes sufficient to achieve ) the Requisite Stockholder Approval, to Parent within two Approval (2) hours of the execution of this Agreementas defined below). The Company shall promptly deliver will prepare and file with the SEC a proxy statement to Parent a copy of each executed Stockholder Written Consent upon receipt thereof from any Stockholder pursuant to such solicitation. It is anticipated that, promptly after the execution of this Agreement, the Company will receive Stockholder Written Consents from Stockholders pursuant be sent to the preceding solicitation Company’s stockholders in connection with the Stockholder Meeting (the “Proxy Statement”). The Proxy Statement shall include the Board of Directors’ recommendation that are sufficient to fully and irrevocably deliver the holders of shares of the Company’s Common Stock vote in favor of the Requisite Stockholder Approval. Promptly upon obtaining If the Requisite Stockholder Approval is not obtained at or prior to the Stockholder Meeting, the Company will hold a special meeting of the stockholders of the Company for the purposes of obtaining such Requisite Stockholder Approval no less often than every ninety (90) days following the date of the Stockholder Meeting until the Requisite Stockholder Approval is obtained, and the Board of Directors will recommend that the holders of shares of the Company’s Common Stock vote in favor of the Requisite Stockholder Approval at each such meeting. As used herein, “Requisite Stockholder Approval” means the stockholder approval contemplated by Nasdaq Listing Rule 5635(d) with respect to the issuance of shares of Common Stock pursuant to the Warrants in excess of the limitations imposed by such rule; provided, however, that the Requisite Stockholder Approval will be deemed to be obtained if, due to any amendment or binding change in the interpretation of the applicable listing standards of the Nasdaq Capital Market, such stockholder approval is no longer required for the Company to issue shares Common Stock pursuant to the Warrants. At the Company's next annual meeting of stockholders, but in no event later than June 30, 2022, the Company shall prepare and, as soon as reasonably practicable, send increase its authorized shares of Common Stock to all Stockholders on the record date for the Stockholder Written Consents who did not execute a Stockholder Written Consent, a Stockholder Written Consent, a Joinder Agreement and a Lock-Up Agreement, and all other notices required pursuant to Delaware Law and the Company shall use its reasonable best efforts to cause each such Stockholder to execute and deliver such Stockholder Written Consent, Joinder Agreement and Lock-Up Agreement to Parent. Such materials submitted to the Stockholders in connection with such Stockholder Written Consents, Joinder Agreements and Lock-Up Agreements shall no less than eighty million (i80,000,000) include an information statement regarding the Company, the terms of this Agreement, and the Mergers, (ii) the unanimous recommendation of the Company’s Board of Directors that the Stockholders should approve this Agreement, the Mergers and the other Transactions, (iii) such other information as Parent and the Company may mutually agree is required or advisable under applicable Legal Requirements, including the notice contemplated by Section 262 of the DGCL and (iv) be subject to reasonable review, comment and approval in all respects by Parent prior to its submission to any Stockholder (the “Information Statement”). Each party agrees that information supplied by such party for inclusion in the Information Statement will not, on the date the Information Statement is first sent or furnished to the Stockholders, 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. The parties shall update, amend and supplement the Information Statement from time to time as may be required by applicable Legal Requirements. Notwithstanding the foregoing terms of this Section 5.2(a), the Information Statement shall not contain, and Parent shall not be required to provide, any non-public information of or regarding Parent, its Subsidiaries, or its or its Subsidiaries’ businesses, assets, liabilities, financial condition, results of operations or projections. The Board of Directors of the Company shall not alter, modify, change or revoke the Company Recommendationshares.
Appears in 1 contract
