Preparation of the Proxy Statement; Stockholders Meeting (a) As promptly as reasonably practicable, and in any event within 30 Business Days following the date of this Agreement, the Company will prepare and cause to be filed with the SEC a preliminary proxy statement (together with any amendments or supplements thereto, the “Proxy Statement”) to be sent to holders of shares of Company Common Stock (the “Company Stockholders”) relating to the meeting of Company Stockholders (the “Company Stockholder Meeting”) to be held for the purpose of considering and taking action on the adoption of this Agreement. The Acquirer Parties will furnish all information concerning the Acquirer Parties and their Affiliates to the Company, and provide such other assistance, as may be reasonably requested in connection with the preparation, filing and distribution of the Proxy Statement. The Company will promptly notify Parent upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement, and will provide Parent with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. The Company will use its reasonable best efforts to resolve as promptly as reasonably practicable any comments from the SEC with respect to the Proxy Statement. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company will (i) provide Parent with a reasonable opportunity to review and comment on the Proxy Statement or response (including the proposed final version of the Proxy Statement or response), (ii) consider in good faith all comments reasonably proposed by Parent, and (iii) except in connection with any Company Adverse Recommendation Change, not file or mail such document or respond to the SEC prior to receiving the approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed.
Press Releases and Public Announcements No Party shall issue any press release or make any public announcement relating to the subject matter of this Agreement without the prior written approval of the other Party; provided, however, that any Party may make any public disclosure it believes in good faith is required by applicable law or any listing or trading agreement concerning its publicly-traded securities (in which case the disclosing Party will use its reasonable best efforts to advise the other Party prior to making the disclosure).
Press Release and Announcements No press release related to this Agreement or the transactions contemplated hereby, or other announcements to the employees, customers or suppliers of Seller, shall be issued without the joint approval of Purchasers and Seller. No other public announcement related to this Agreement or the transactions contemplated hereby shall be made by either party, except as required by law, in which event the parties shall consult as to the form and substance of any such announcement required by law.
Press Releases and Announcements No Party shall issue any press release or public announcement relating to the subject matter of this Agreement without the prior written approval of the other Parties; provided, however, that any Party may make any public disclosure it believes in good faith is required by applicable law, regulation or stock market rule (in which case the disclosing Party shall use reasonable efforts to advise the other Parties and provide them with a copy of the proposed disclosure prior to making the disclosure).
Confidentiality/Public Announcement From the date of this Agreement and until the End Date, the Company agrees that except in connection with a Form 8-K, Form 10-Q, Form 10-K and the registration statement or statements regarding the Subscribers’ Securities or in correspondence with the Commission regarding same, it will not disclose publicly or privately the identity of the Subscribers unless expressly agreed to in writing by Subscribers or only to the extent required by law and then only upon not less than five days prior notice to Subscribers. In any event and subject to the foregoing, the Company undertakes to file a Form 8-K (the “Form 8-K”) describing the Offering not later than the fourth (4th) business day after the Closing Date. In the Form 8-K, the Company will specifically disclose the amount of Common Stock outstanding immediately after the Closing. Upon delivery by the Company to the Subscribers after the Closing Date of any notice or information, in writing, electronically or otherwise, and while a Note, Conversion Shares or Warrants are held by Subscribers, unless the Company has in good faith determined that the matters relating to such notice do not constitute material, nonpublic information relating to the Company or Subsidiaries, the Company shall within four (4) days after any such delivery publicly disclose such material, nonpublic information on a Report on Form 8-K. In the event that the Company believes that a notice or communication to Subscribers contains material, nonpublic information relating to the Company or Subsidiaries, except as required to be delivered in connection with this Agreement, the Company shall so indicate to Subscribers prior to delivery of such notice or information. Subscribers will be granted five days to notify the Company that Subscriber elects not to receive such information. In the case that Subscriber elects not to receive such information, the Company will not deliver such information to Subscribers. In the absence of any such Company indication, Subscribers shall be allowed to presume that all matters relating to such notice and information do not constitute material, nonpublic information relating to the Company or Subsidiaries.
Announcement of Offering The Company acknowledges and agrees that the Placement Agent may, subsequent to the Closing, make public its involvement with the Offering.
Preparation of Proxy Statement; Stockholders Meeting As promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreement.
Confidentiality; Public Disclosure (a) The parties hereto acknowledge that Purchaser and the Company have previously executed a mutual non-disclosure agreement, dated as of May 3, 2017 (the “Confidentiality Agreement”), which shall continue in full force and effect in accordance with its terms. Each party hereto (other than the Equityholders’ Representative) agrees that it and its Representatives shall hold the terms of this Agreement, and the fact of this Agreement’s existence, in strict confidence. At no time shall any party hereto (other than the Equityholders’ Representative) disclose any of the terms of this Agreement (including the economic terms) or any non-public information about a party hereto to any other Person without the prior written consent of the party hereto about which such non-public information relates. Notwithstanding anything to the contrary in the foregoing, a party hereto shall be permitted to disclose any and all terms to its financial, tax and legal advisors (each of whom is subject to a similar obligation of confidentiality), to its members and limited and general partners (each of whom is subject to an obligation of confidentiality that is at least as strict as set forth herein and in the Confidentiality Agreement), to prospective investors (each of whom is subject to an obligation of confidentiality that is at least as strict as set forth herein and in the Confidentiality Agreement, and to whom the identities of the parties to this Agreement shall remain undisclosed until such prospective investors become actual investors) and to any Governmental Entity or administrative agency to the extent necessary or advisable in compliance with Applicable Law. The Equityholders’ Representative acknowledges and agrees that after the Closing it shall continue to be bound by the terms and conditions of that certain Nondisclosure Agreement, dated as of May 13, 2017, by and between the Equityholders’ Representative and the Company, which shall be deemed to cover all information relating to the Stock Purchase or this Agreement received by the Equityholders’ Representative after the Closing or relating to the period after the Closing and shall be enforceable by Purchaser after the Closing.
Confidentiality; Public Announcements Except as otherwise contemplated by Section 6.02(h) (and, for the avoidance of doubt, nothing herein shall limit the rights of the Company, the Company Board or the Special Committee under Section 6.02), the parties shall consult with each other before issuing any press release or public announcement with respect to this Agreement or the Transactions, including by providing each other with the opportunity to review and comment upon such press release or public announcement prior to its issuance, and none of the parties or their controlled Affiliates shall issue any such press release or public announcement prior to obtaining the other parties’ written consent (which consent shall not be unreasonably withheld or delayed), except that, after having consulted with the other parties in accordance with this Section 6.06, no such consent shall be necessary to the extent disclosure may be required by Applicable Law. The press release announcing the execution of this Agreement shall be issued only in such form as shall be mutually agreed upon by the Company and Parent. Each of Company and Parent may, without the consent of the other party, communicate to its directors, officers, employees, customers, suppliers and consultants so long as such communication is not inconsistent with previous statements made jointly by the Company and Parent (or made by one party hereto in accordance with this Section 6.06) after having consulted with the other parties in accordance with this Section 6.06 or is consistent with a communications plan previously agreed to by Parent and the Company in which case such communications may be made consistent with such plan. Notwithstanding anything to the contrary set forth therein or herein, the Company Confidentiality Agreement shall continue in full force and effect until the Closing. Nothing in this Section 6.06 shall limit the ability of any party hereto to make additional disclosures that are consistent in all but de minimis respects with the prior public disclosures regarding the transactions contemplated by this Agreement.
Press Release The Company and the Investor agree that the Company shall issue a press release announcing the Offering prior to the opening of the financial markets in New York City on the business day immediately after the date hereof.
