FORM OF WRITTEN CONSENT IN LIEU OF A SPECIAL MEETING OF THE STOCKHOLDERS OF [TARGET COMPANY NAME]
Action by Written Consent Pursuant to Section 228 of the Delaware General Corporation Law
[This form has been prepared by Calderwood & Harkness LLP for use by Whitfield, Prager & Loomis LLP in connection with the transactions contemplated by the Agreement and Plan of Merger dated [Insert Date] (the "Merger Agreement"). All bracketed text constitutes placeholders or instructional guidance and must be completed or deleted, as appropriate, prior to execution. This form does not constitute legal advice and should be reviewed by counsel to the Target prior to circulation to stockholders.]
Dated as of: ___, 20
RECITALS
The undersigned stockholders of [Insert full legal name of the Target], a Delaware corporation (the "Company"), having its principal office at [Insert principal office address], incorporated under the laws of the State of Delaware, File No. [Insert], hereby take the following actions and adopt the following resolutions by written consent in lieu of a special meeting of the stockholders of the Company, in accordance with Section 228 of the Delaware General Corporation Law (the "DGCL") and the Company's Certificate of Incorporation and Bylaws:
A. The Corporation. The Company is [Insert full legal name of the Target], a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, with its principal executive offices located at [Insert principal office address]. The Company was incorporated in the State of Delaware under File No. [Insert] and is authorized to issue shares of capital stock as set forth in its Certificate of Incorporation, as amended through the date hereof.
B. The Merger Agreement. The Company has entered into that certain Agreement and Plan of Merger (the "Merger Agreement"), dated as of [Insert Date], by and among (i) [Insert full legal name of the Acquirer], a [Insert entity type] organized under the laws of [Insert jurisdiction] (the "Acquirer"), (ii) [Insert full legal name of the Merger Subsidiary], a Delaware corporation and wholly owned subsidiary of the Acquirer ("Merger Sub"), and (iii) the Company. The Merger Agreement contemplates [describe structure, e.g., a reverse triangular merger in which the Merger Subsidiary will merge with and into the Company, with the Company surviving as a wholly owned subsidiary of the Acquirer] (the "Merger"). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
C. Merger Consideration. Pursuant to the Merger Agreement, at the Effective Time of the Merger, each share of common stock, par value $[Insert] per share, of the Company (other than Excluded Shares, Dissenting Shares, and shares held in the treasury of the Company) will be converted into the right to receive $[Insert per-share amount] in cash, without interest (the "Per Share Merger Consideration"), representing an aggregate equity consideration of approximately $[Insert aggregate amount]. The terms and conditions of the Merger, including the treatment of outstanding equity awards of the Company, are more fully described in the Merger Agreement, a copy of which is attached hereto as Exhibit A or has otherwise been made available to the undersigned stockholders.
D. Board Recommendation. The Board of Directors of the Company (the "Board"), at a meeting duly called and held or by unanimous written consent, has:
(i) determined that the Merger Agreement, the Merger, and the other transactions contemplated thereby are advisable and fair to, and in the best interests of, the Company and its stockholders;
(ii) approved and adopted the Merger Agreement and approved the Merger and the other transactions contemplated by the Merger Agreement;
(iii) directed that the Merger Agreement be submitted to the stockholders of the Company for adoption and resolved to recommend that the stockholders of the Company adopt the Merger Agreement and approve the Merger (the "Board Recommendation"); and
(iv) determined that this Written Consent is the appropriate method by which to obtain the Stockholder Approval (as defined in the Merger Agreement) required under the Merger Agreement, the DGCL, and the Company's Certificate of Incorporation and Bylaws.
[Reference fairness opinion from [Insert Target's Financial Advisor], if applicable. If a fairness opinion was delivered to the Board, include the following: "In connection with the foregoing determinations, the Board received the opinion of [Insert Target's Financial Advisor], dated [Insert Date], to the effect that, as of such date and based upon and subject to the assumptions, qualifications, limitations, and other matters set forth therein, the Per Share Merger Consideration to be received by the holders of Company common stock (other than Excluded Shares, Dissenting Shares, and shares held in treasury) pursuant to the Merger Agreement was fair, from a financial point of view, to such holders."]
E. Stockholder Action by Written Consent. Section 228 of the DGCL provides that, unless the certificate of incorporation provides otherwise, any action required or permitted to be taken at any annual or special meeting of stockholders of a corporation may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. The adoption of the Merger Agreement requires the affirmative vote (or written consent) of the holders of a majority of the outstanding shares of common stock of the Company entitled to vote thereon (the "Stockholder Approval"). [Confirm the Company's Certificate of Incorporation does not prohibit or restrict action by written consent; verify applicable voting threshold. If the Certificate of Incorporation or Bylaws impose a supermajority or other special voting threshold, the applicable threshold must be substituted throughout this form.]
F. Undersigned Stockholders. The undersigned stockholders collectively hold the number of shares of common stock of the Company set forth on the signature pages hereto. [The undersigned stockholders collectively hold [Insert number] shares of common stock of the Company, representing approximately [Insert]% of the outstanding shares of common stock of the Company entitled to vote on such matters as of the date hereof.] The undersigned stockholders are the record and/or beneficial holders of such shares and are entitled to vote such shares on the matters set forth herein. [Ensure total shares represented meet or exceed majority threshold. Shares outstanding (basic): [Insert]. Majority threshold: [Insert number + 1] shares. If any shares are held in street name or through a nominee, confirm that proper authority to execute this Written Consent has been obtained.]
RESOLUTIONS
NOW, THEREFORE, BE IT:
Resolution 1 — Adoption of the Merger Agreement
RESOLVED, that the Agreement and Plan of Merger, dated as of [Insert Date], by and among [Insert Acquirer Full Name], [Insert Merger Sub Full Name], and [Insert Target Full Name] (as it may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), a copy of which has been made available to the undersigned and is attached hereto as Exhibit A, be and hereby is adopted in its entirety; and be it further
Resolution 2 — Approval of the Merger and Related Transactions
RESOLVED, that the Merger, the other transactions contemplated by the Merger Agreement, and each of the other agreements, documents, instruments, and certificates contemplated by or entered into in connection with the Merger Agreement (including, without limitation, any voting agreements, support agreements, escrow agreements, stockholder representative agreements, letters of transmittal, paying agent agreements, and any ancillary agreements referenced therein), be and hereby are approved in all respects; and be it further
Resolution 3 — Authorization of Officers and Directors
RESOLVED, that each of the officers and directors of the Company be, and each of them hereby is, authorized and directed, in the name and on behalf of the Company, to execute and deliver any and all documents, agreements, instruments, and certificates, and to take any and all actions (including, without limitation, the filing of a Certificate of Merger with the Secretary of State of the State of Delaware and any corresponding filings in other jurisdictions, as applicable) as such officer or director may deem necessary, appropriate, or advisable to carry out the intent and purposes of the foregoing resolutions and to consummate the transactions contemplated by the Merger Agreement, the execution and delivery of such documents and the taking of such actions to be conclusive evidence of such officer's or director's approval thereof; and be it further
Resolution 4 — Ratification of Prior Actions
[Include if applicable — ratification of any actions taken by officers or directors prior to the date of this consent in furtherance of the Merger. If no prior actions require ratification, this resolution may be deleted.]
RESOLVED, that all actions heretofore taken by the officers, directors, and authorized representatives of the Company in connection with the negotiation, execution, and delivery of the Merger Agreement, and in furtherance of the transactions contemplated thereby, including, without limitation, the engagement of financial advisors, legal counsel, and other professionals, and the execution of any confidentiality agreements, exclusivity agreements, expense reimbursement agreements, or similar instruments, be, and hereby are, ratified, confirmed, and approved in all respects as the acts and deeds of the Company.
GENERAL PROVISIONS
1. Effectiveness of Consent
This Written Consent shall be effective as of the date and time on which it is signed by stockholders holding shares of common stock of the Company sufficient to satisfy the Stockholder Approval requirement under the DGCL and the Company's Certificate of Incorporation and Bylaws (i.e., holders of a majority of the outstanding shares of common stock of the Company entitled to vote thereon, unless a different threshold is specified in the Certificate of Incorporation). In the event that this Written Consent is executed on different dates by different stockholders, this Written Consent shall not become effective until consents signed by a sufficient number of stockholders to satisfy the applicable voting requirement have been delivered to the Company in accordance with Section 228 of the DGCL. Pursuant to Section 228(c) of the DGCL, prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders of the Company who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Company.
2. Filing with Corporate Records
The Secretary or any Assistant Secretary of the Company is hereby authorized and directed to file this Written Consent, together with all counterparts and signature pages hereto, with the minutes of proceedings of the stockholders of the Company maintained at the principal office of the Company or at such other location as corporate records are maintained, in accordance with Section 228(a) of the DGCL. This Written Consent shall be made a part of the permanent records of the Company.
3. Counterparts. This Written Consent may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of this Written Consent by electronic mail (including in .pdf, .tif, or similar format) or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document shall have the same effect as delivery of a manually executed counterpart.
4. Revocability. [Note: Under Delaware law, a written consent is revocable prior to the time that written consents sufficient to authorize the action are delivered to the corporation. Once written consents signed by the requisite number of stockholders have been delivered to the corporation in accordance with Section 228 of the DGCL, the corporate action specified therein becomes effective and the consents become irrevocable. Counsel should confirm timing of delivery and coordinate delivery of all counterparts to ensure simultaneous or near-simultaneous receipt by the Company. Any stockholder wishing to revoke a previously delivered consent must deliver a written revocation to the Secretary of the Company prior to the time that sufficient consents have been received to authorize the action.]
5. No Meeting Required
The undersigned stockholders are acting by written consent in lieu of a special meeting of the stockholders of the Company in accordance with Section 228 of the DGCL. No prior notice of a meeting was required to be given, and no meeting of the stockholders of the Company was held, in connection with the adoption of the resolutions set forth herein. The undersigned stockholders acknowledge that this Written Consent has the same force and effect as a vote taken at a duly called and held special meeting of the stockholders of the Company at which all shares entitled to vote were present and voted.
APPRAISAL RIGHTS NOTICE AND ACKNOWLEDGMENT
[Include acknowledgment of appraisal rights under Section 262 of the DGCL. Note: The Company is required to provide notice of the availability of appraisal rights to all stockholders who did not execute this Written Consent within ten (10) days after the date on which sufficient consents to authorize the Merger are delivered to the Company. This notice must comply with the requirements of Section 262(d)(2) of the DGCL. This form should include an acknowledgment by the consenting stockholders that they are aware of, and are electing not to exercise, appraisal rights with respect to shares voted in favor of the Merger Agreement.]
The undersigned acknowledges that the undersigned has been informed of, and understands, the right to demand appraisal of shares of common stock of the Company pursuant to Section 262 of the DGCL (the "Appraisal Rights"). The undersigned has been provided with a copy of Section 262 of the DGCL and has had the opportunity to consult with legal counsel regarding such Appraisal Rights. By executing this Written Consent and voting in favor of the adoption of the Merger Agreement and the approval of the Merger, the undersigned acknowledges that the undersigned is not exercising, and does not intend to exercise or preserve, any Appraisal Rights with respect to the shares of common stock of the Company voted in favor hereof. The undersigned understands that, by consenting to the adoption of the Merger Agreement, the undersigned will be deemed to have waived any right to demand appraisal of such shares under Section 262 of the DGCL.
Nothing in this Written Consent shall be deemed to limit or affect the obligation of the Company to provide notice of the availability of appraisal rights to non-consenting stockholders in accordance with Section 262(d)(2) of the DGCL.
SIGNATURE PAGES
[Each signing stockholder should complete the information below. A separate signature page should be used for each stockholder. Attach additional pages as necessary. Ensure that signatures conform to the registered name of the stockholder on the Company's books and records. If a stockholder holds shares in more than one capacity (e.g., individually and as trustee of a trust), separate signature pages should be executed for each capacity. Powers of attorney or other evidence of authority to sign on behalf of an entity or other person should be attached.]
Signature block — Individual Stockholder
IN WITNESS WHEREOF, the undersigned stockholder has executed this Written Consent as of the date set forth below.
Name of Stockholder (Print): ________
Signature: ________
Date: ________
Number of Shares of Common Stock Held: ________
Percentage of Outstanding Shares Represented: __%
Signature block — Entity Stockholder
IN WITNESS WHEREOF, the undersigned entity stockholder has caused this Written Consent to be executed by its duly authorized signatory as of the date set forth below.
Name of Entity Stockholder: ________
By: ________
Name: ________
Title: ________
Date: ________
Number of Shares of Common Stock Held: ________
Percentage of Outstanding Shares Represented: __%
[Instruction Note for Whitfield, Prager & Loomis LLP: Please ensure that each of the following stockholders, who are parties to the Voting and Support Agreement dated [Insert Date], executes and delivers this Written Consent in accordance with such stockholder's obligations thereunder:
1. [Insert Name of Stockholder 1] — [Insert]% of outstanding shares
2. [Insert Name of Stockholder 2 (Entity)] — [Insert]% of outstanding shares
3. [Insert Name of Stockholder 3 (Entity)] — [Insert]% of outstanding shares
4. [Additional stockholders as necessary to achieve majority threshold]
Aggregate shares represented by the above: approximately [Insert]% of outstanding shares.
Confirm this exceeds the majority threshold of [Insert number] shares (i.e., a majority of the [Insert total number] shares of common stock of the Company outstanding as of the date hereof).
Upon execution, please deliver original signature pages (or electronic copies thereof) to Calderwood & Harkness LLP, Attention: [Insert Contact Name], at [Insert Email Address], with a copy to [Insert Contact Name] at the Company. Retain copies for your files.]
EXHIBIT A
MERGER AGREEMENT
[Attach a complete copy of the executed Agreement and Plan of Merger, dated [Insert Date], by and among [Insert Acquirer Full Name], [Insert Merger Sub Full Name], and [Insert Target Full Name], including all exhibits, schedules, annexes, and disclosure schedules thereto. If the Merger Agreement has been previously delivered to or made available to each of the consenting stockholders and attaching a complete copy is impracticable, the following acknowledgment may be substituted:]
[Alternative: "The Merger Agreement, including all exhibits and schedules thereto, has been made available to each of the undersigned stockholders prior to the execution of this Written Consent. By executing this Written Consent, each undersigned stockholder acknowledges receipt and review of the Merger Agreement in its entirety. A copy of the Merger Agreement is on file at the principal office of the Company and will be furnished to any stockholder upon written request to the Secretary of the Company."]
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Form prepared by Calderwood & Harkness LLP for use by Whitfield, Prager & Loomis LLP
Engagement/Matter Reference: [Insert engagement or matter number, if applicable]
CONFIDENTIAL — ATTORNEY WORK PRODUCT
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