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Common use of Agreement to Tender Clause in Contracts

Agreement to Tender. (a) Prior to the Termination Date (as defined herein), if requested in writing by Parent, but in no event prior to such written request, each Stockholder hereby severally agrees to tender, or cause to be tendered, pursuant to and in accordance with the terms of the Offer, such Stockholder’s Covered Shares (other than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which the Stockholder does not have the power to dispose of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three (3) Business Days after receipt of the written request of Parent, but in no event prior to receipt of such written request, each Stockholder will: (i) deliver to the Exchange Agent designated in the Offer (A) a properly completed letter of election and transmittal with respect to such Stockholder’s Covered Shares complying with the terms of the Offer, (B) if and to the extent such Covered Shares are held in certificated form, the certificates representing the Covered Shares, and (C) all other documents or instruments required to be delivered pursuant to the terms of the Offer; and/or (ii) instruct its broker or such other Person who is the holder of any of such Stockholder’s Covered Shares to promptly tender such Shares in the Offer pursuant to and in accordance with the terms and conditions of the Offer. (b) Each Stockholder acknowledges and agrees that Merger Sub’s obligation to accept for payment Shares tendered in the Offer, including any Shares tendered by any Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Cardiogenesis Corp /CA), Support Agreement (Cardiogenesis Corp /CA)

Agreement to Tender. (a) Prior to the Termination Date (as defined herein), if requested in writing by Parent, but in no event prior to such written request, each Stockholder hereby severally agrees to tender, or cause to be tendered, pursuant to and in accordance with the terms of the Offer, such Stockholder’s 's Covered Shares (other than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which the Stockholder does not have the power to dispose of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three (3) Business Days after receipt of the written request of Parent, but in no event prior to receipt of such written request, each Stockholder will: (i) deliver to the Exchange Agent designated in the Offer (A) a properly completed letter of election and transmittal with respect to such Stockholder’s 's Covered Shares complying with the terms of the Offer, (B) if and to the extent such Covered Shares are held in certificated form, the certificates representing the Covered Shares, and (C) all other documents or instruments required to be delivered pursuant to the terms of the Offer; and/or (ii) instruct its broker or such other Person who is the holder of any of such Stockholder’s 's Covered Shares to promptly tender such Shares in the Offer pursuant to and in accordance with the terms and conditions of the Offer. (b) Each Stockholder acknowledges and agrees that Merger Sub’s 's obligation to accept for payment Shares tendered in the Offer, including any Shares tendered by any Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Cryolife Inc), Merger Agreement (Cryolife Inc)

Agreement to Tender. (a) Prior to Each Shareholder agrees that such Shareholder shall duly tender in the Termination Date (as defined herein), if requested in writing by Parent, but in no event prior to Offer all of such written request, each Stockholder hereby severally agrees to tender, or cause to be tendered, Shareholder's Subject Shares pursuant to and in accordance with the terms of the Offer, such Stockholder’s Covered Shares (other than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which the Stockholder does not have the power to dispose of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three (3) Business Days after receipt of the written request of ParentPromptly, but in any event no event later than the fifth Business Day prior to receipt the initial expiration date of the Offer, such written request, each Stockholder will: Shareholder shall (i) deliver to the Exchange Agent depositary designated in the Offer (the "Depositary") (A) a properly completed letter of election and transmittal with respect to all such Stockholder’s Covered Shareholder's Subject Shares complying with the terms of the Offer, (B) if and to the extent such Covered Shares are held in certificated form, the a certificate or certificates representing such Subject Shares or an "agent's message" (or such other evidence, if any, of transfer as the Covered Shares, Depositary may reasonably request) in the case of a book-entry transfer of any uncertificated Subject Shares and (C) all other documents or instruments required to be delivered pursuant to the terms of the Offer; , and/or (ii) instruct its such Shareholder's broker or such other Person who that is the holder of record of any of Subject Shares beneficially owned by such Stockholder’s Covered Shares Shareholder to promptly tender such Subject Shares in the Offer pursuant to and in accordance with the terms and conditions of the Offer. (b) . Each Stockholder acknowledges and Shareholder agrees that Merger Sub’s obligation to accept for payment once such Shareholder's Subject Shares are tendered in the Offer, including such Shareholder shall not withdraw any of such Subject Shares tendered by any Stockholder, is subject to from the Offer unless and until (i) the Offer shall have been terminated in accordance with the terms and conditions of the Merger Agreement or (ii) this Agreement shall have been terminated in accordance with Section 4.03 hereof, provided, however, that (i) a Shareholder shall not be required for purposes of this Agreement to exercise any unexercised Company Stock Options or Company Stock Purchase Rights held by such Shareholder; and (ii) a Shareholder shall not have any obligation under this Section 1.01 to tender his or her Subject Shares into the OfferOffer if that tender would cause him or her to incur liability under Section 16(b) of the Exchange Act.

Appears in 2 contracts

Samples: Tender and Voting Agreement (Komag Inc /De/), Tender and Voting Agreement (Western Digital Corp)

Agreement to Tender. (a) Prior Subject to the Termination Date (as defined herein), if requested in writing by Parent, but in no event prior to such written requestterms of this Agreement, each Stockholder hereby severally agrees to tender, validly and irrevocably tender or cause to be tendered, validly and irrevocably tendered in the Offer all of such Stockholder’s Subject Shares (other than Company Stock Options that are not exercised during the term of this Agreement) pursuant to and in accordance with the terms of the Offer, such Stockholder’s Covered Shares free and clear of all Liens except for Permitted Liens (other than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which defined below). Without limiting the Stockholder does not have the power to dispose of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three (3) Business Days after receipt generality of the written request of Parentforegoing, as promptly as practicable after, but in no event prior later than ten (10) business days after, the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (or in the case of any shares of Company Common Stock or Company Options acquired by such Stockholder subsequent to such tenth (10th) business day, or in each case if such Stockholder has not received the Offer Documents by such time, as promptly as practicable after the acquisition of such shares or receipt of such written requestthe Offer Documents, as the case may be), each Stockholder will: (i) shall deliver or cause to be delivered pursuant to the Exchange Agent designated in terms of the Offer (Aa) a properly completed letter of election and transmittal with respect to all of such Stockholder’s Covered Subject Shares complying with the terms of the Offer, (Bb) if and a certificate representing all such Subject Shares that are certificated or, in the case of a Book Entry Share, written instructions to the extent such Covered Stockholder’s broker, dealer or other nominee that such Subject Shares are held in certificated formbe tendered, the certificates representing the Covered Sharesincluding a reference to this Agreement, and requesting delivery of an “agent’s message” (C) all other documents or instruments required to be delivered pursuant to the terms of the Offer; and/or (ii) instruct its broker or such other Person who is evidence, if any, of transfer as the holder of any of Paying Agent may reasonably request) with respect to such Stockholder’s Covered Shares to promptly tender such Shares in the Offer pursuant to and in accordance with the terms and conditions of the Offer. (b) Each Stockholder acknowledges and agrees that Merger Sub’s obligation to accept for payment Shares tendered in the OfferSubject Shares, including any Shares tendered by any Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.and

Appears in 2 contracts

Samples: Tender and Support Agreement (Loxo Oncology, Inc.), Tender and Support Agreement

Agreement to Tender. Each of the Stockholders hereby agrees to validly tender (aor cause the record owner of such shares to validly tender) Prior in the Offer (defined in the Merger Agreement) within 20 days of the receipt of Buyer's offer to purchase relating to the Termination Date (as defined herein), if requested in writing by Parent, but in no event prior to Offer such Stockholder's Shares. Upon receipt of written requestinstructions from the Buyer, each Stockholder hereby severally agrees to tender, or cause to be tendered, pursuant to and in accordance with the terms of the Offer, such Stockholder’s Covered Shares (other than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which the Stockholder does not have the power to dispose of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three (3) Business Days after receipt of the written request of Parent, but in no event prior to receipt of such written request, each Stockholder will: (i) shall promptly deliver to the Exchange Agent depositary (the "Depositary") designated in the Offer (Ai) a properly completed letter of election and transmittal with respect to such Stockholder’s Covered 's Shares complying with the terms of the Offer together with instructions directing the Depositary to make payment for such Shares directly to the Stockholder (but if such Shares are not accepted for payment or are withdrawn and are to be returned pursuant to the Offer, (B) if and to return such Shares to such Stockholder whereupon they shall continue to be held by such Stockholder subject to the extent terms and conditions of this Agreement), (ii) the Certificates representing such Covered Stockholder's Shares are held in certificated form, the certificates representing the Covered Shares, and (Ciii) all other documents or instruments required to be delivered pursuant to the terms of the Offer; and/or Offer (iisuch documents in clauses (i) instruct its broker or such other Person who is through (iii) collectively being hereinafter referred to as the holder of "Tender Documents"). No tender pursuant to this Section 1.4 will excuse any of the obligations of the Stockholders hereunder. Notwithstanding anything to the contrary set forth herein, no Stockholder shall be required to tender such Stockholder’s Covered Shares to promptly tender such 's Shares in the Offer if the per Share consideration to be paid by Buyer pursuant to and the Offer is less than $5.50 per Share in accordance with the terms and conditions of the Offercash. (b) Each Stockholder acknowledges and agrees that Merger Sub’s obligation to accept for payment Shares tendered in the Offer, including any Shares tendered by any Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.

Appears in 2 contracts

Samples: Stock Option Agreement (Sheridan Energy Inc), Stock Option Agreement (Calpine Corp)

Agreement to Tender. (a) Prior to the Termination Date (as defined herein), if requested in writing by Parent, but in no event prior to such written request, each Stockholder hereby severally agrees to Each Shareholder shall duly tender, or cause to be tendered, in the Offer, all of the Subject Shares pursuant to and in accordance with the terms of the Offer. Promptly, such Stockholder’s Covered Shares but in any event no later than ten (other than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which the Stockholder does not have the power to dispose of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three (310) Business Days after receipt the commencement of the written request of Parent, but in no event prior to receipt of such written requestOffer, each Stockholder will: Shareholder shall (i) deliver to the Exchange Agent depositary designated in the Offer (the “Depositary”) (A) a properly completed letter of election and transmittal with respect to such Stockholder’s Covered Subject Shares complying with the terms of the Offer, (B) if and to the extent such Covered Shares are held in certificated form, the a certificate or certificates representing such Subject Shares or an “agent’s message” (or such other evidence, if any, of transfer as the Covered Shares, Depositary may reasonably request) in the case of a book-entry transfer of any uncertificated Subject Shares and (C) all other documents or instruments required to be delivered pursuant to the terms of the Offer; , and/or (ii) instruct its his or her broker or such other Person who that is the holder of record of any of Subject Shares beneficially owned by such Stockholder’s Covered Shares Shareholder to promptly tender such Subject Shares in the Offer pursuant to and in accordance with the terms and conditions of the Offer. . Each Shareholder shall duly tender to Purchaser during any subsequent offering period provided by Purchaser in accordance with the terms of the Offer (b) Each Stockholder acknowledges and agrees that Merger Sub’s obligation to accept for payment Shares tendered in “Subsequent Offering Period”), all of the Subject Shares, if any, which shall have been issued after the expiration of the Offer, including promptly, but in any event no later than two (2) Business Days after the commencement of such Subsequent Offering Period. Each Shareholder agrees that once his or her Subject Shares are tendered by him or her, such Shareholder will not withdraw, nor permit the withdrawal of, any Stockholdertender of such Subject Shares, is subject to unless and until (i) the Offer shall have been terminated in accordance with the terms and conditions of the Merger Agreement, or (ii) this Agreement and the Offershall have been terminated in accordance with Section 3.03.

Appears in 2 contracts

Samples: Tender and Support Agreement (Costa Brava Partnership III LP), Tender and Support Agreement (Emancipation Capital)

Agreement to Tender. (a) Prior Subject to any restriction imposed as a result of any prior pledge or other hypothecation of Shares by the Termination Date (as defined herein)Shareholder, if requested in writing by Parent, but in no event prior to such written request, each Stockholder Shareholder hereby severally irrevocably and unconditionally agrees to tender, validly tender (and not withdraw) or cause to be tendered, validly tendered (and not withdrawn) pursuant to and in accordance with the terms of the Offer all of the Shares that Shareholder owns as of the date hereof as well as any additional Shares that Shareholder may own, whether acquired by purchase, exercise of options or otherwise, at any time after the date hereof (the "SHAREHOLDER SHARES"). Within five business days after the date hereof (or within five business days after any Shareholder Shares are acquired during pendency of the Offer, such Stockholder’s Covered Shares (other than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which the Stockholder does not have the power to dispose of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreementif later), and agrees that it will not withdraw or permit the withdrawal of such Shareholder shall deliver (with respect to Shareholder Shares from the Offer. Within three (3controlled by Shareholder) Business Days after receipt of the written request of Parent, but in no event prior to receipt of such written request, each Stockholder will: (i) deliver to the Exchange Agent depositary designated in the Offer (Ai) a properly completed letter of election and transmittal with respect to such Stockholder’s Covered the Shareholder Shares complying with the terms of the Offer, (Bii) if and to the extent such Covered Shares are held in certificated form, the certificates representing all of the Covered Shares, Shareholder Shares and (Ciii) all other documents or instruments required to be delivered pursuant to the terms of the Offer; and/or . With respect to Shares subject to a prior pledge or hypothecation agreement, Shareholder agrees that (i) he will not tender or deliver such Shares other than pursuant to the Offer or to the applicable pledge holder and (ii) instruct its broker he will use his best efforts to cause the pledge holder to tender the Shares pursuant to the Offer or such other Person who is to consent to, or otherwise remove any restrictions prohibiting, the holder of any tender of such Stockholder’s Covered Shares to promptly tender such Shares in by the Offer pursuant to and in accordance with the terms and conditions of the OfferShareholder. (b) Each Stockholder acknowledges and agrees that Merger Sub’s obligation to accept for payment Shares tendered in the Offer, including any Shares tendered by any Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.

Appears in 1 contract

Samples: Shareholder Agreement (Brunswick Technologies Inc)

Agreement to Tender. (a) Prior to the Termination Date (as defined herein), if requested and except as set forth in writing by Parent, but in no event prior to such written requestSection 3, each Stockholder hereby severally agrees to tender, or cause to be tendered, pursuant to and in accordance with the terms of the Offer, such Stockholder’s 's Covered Shares (other than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which the Stockholder does not have the power to dispose of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three five (35) Business Days after receipt commencement of the written request of Parent, but in no event prior to receipt of such written requestOffer, each Stockholder will, except as set forth in Section 3: (i) deliver to the Exchange Agent designated in the Offer (A) a properly completed letter of election and transmittal (including the Form of Election) with respect to such Stockholder’s 's Covered Shares complying with the terms of the Offer, (B) if and to the extent such Covered Shares are held in certificated form, the certificates Certificates representing the Covered Shares, and (C) all other documents or instruments required to be delivered pursuant to the terms of the Offer; and/or (ii) instruct its broker or such other Person who is the holder of any of such Stockholder’s 's Covered Shares to promptly tender such Shares in the Offer pursuant to and in accordance with the terms and conditions of the Offer. (b) Each Stockholder acknowledges and agrees that Merger Sub’s 's obligation to accept for payment Shares tendered in the Offer, including any Shares tendered by any Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.

Appears in 1 contract

Samples: Tender and Voting Agreement (AGA Medical Holdings, Inc.)

Agreement to Tender. (a) Prior to the Termination Date (as defined herein), if requested in writing by Parent, but in no event prior to such written request, each Stockholder Each Shareholder hereby severally agrees to tender, validly tender or cause to be tendered, tendered in the Offer all of such Shareholder’s Shares (excluding for purposes of this Section 2 any Shares that are the subject of unexercised Options or SARs) pursuant to and in accordance with the terms of the Offer, such Stockholder’s Covered Shares Offer as promptly as practicable (other but no later than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which the Stockholder does not have close of business on the power to dispose 17th business day) after commencement of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three (3) Business Days after receipt In furtherance of the written request Table of Parent, but in no event prior to receipt of such written request, each Stockholder will: (i) deliver to the Exchange Agent designated in the Offer Contents (A) a properly completed letter of election and transmittal with respect to such Stockholder’s Covered its Shares complying with the terms of the Offer, (B) if and to the extent such Covered Shares are held in certificated form, the a certificate or certificates representing such Shares or an “agent’s message” (or such other evidence, if any, of transfer as the Covered Shares, Depositary may reasonably request) in the case of a book-entry transfer of any uncertificated Shares and (C) all other documents or instruments instruments, to the extent applicable, required to be delivered by other shareholders of the Company pursuant to the terms of the Offer; , and/or (ii) instruct its broker or such other Person who that is the holder of record of any of such Stockholder’s Covered Shares to promptly tender such Shares in the Offer pursuant to and in accordance with the terms and conditions of the Offer. (b) . Each Stockholder acknowledges and Shareholder agrees that Merger Sub’s obligation once its Shares are tendered, such Shareholder will not withdraw or cause to accept for payment be withdrawn any of such Shares tendered in from the Offer, including any unless and until this Agreement shall have been terminated in accordance with Section 13(d). Upon the end of the Agreement Period, Parent shall cause the Depositary to immediately return to each Shareholder all certificates representing such Shareholder’s Shares tendered by any Stockholder, is subject which had been previously delivered to the terms Depositary pursuant to this Section 2 or, with regard to uncertificated Shares, to take such other appropriate action to immediately evidence and conditions effect the return of the Merger Agreement and the Offersuch Shares to each Shareholder in book-entry form or otherwise.

Appears in 1 contract

Samples: Merger Agreement (New River Pharmaceuticals Inc)

Agreement to Tender. (a) Prior Subject to the Termination Date (as defined herein), if requested in writing by Parent, but in no event prior to such written requestterms of this Agreement, each Stockholder hereby severally agrees to tender, validly and irrevocably tender or cause to be tendered, validly and irrevocably tendered in the Offer all of such Stockholder’s Subject Shares pursuant to and in accordance with the terms of the Offer, such Stockholder’s Covered Shares free and clear of any Liens, proxies, voting trusts or agreements, encumbrances or restrictions, except for Permitted Liens (other than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which defined below). Without limiting the Stockholder does not have the power to dispose of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three (3) Business Days after receipt generality of the written request of Parentforegoing, as promptly as practicable after, but in no event later than the later of (a) ten (10) Business Days after the later of (i) the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer or (ii) the date of delivery of the letter of transmittal with respect to the Offer or, with respect to shares held in “street name”, the date of delivery of materials from the applicable nominee or broker providing executable instructions regarding tendering into the Offer (but in any event prior to receipt the expiration of the Offer) or (b) in the case of any shares of Company Common Stock acquired by such Stockholder following the date of this Agreement, as promptly as reasonably practicable after the acquisition of such written requestshares, as the case may be (but, if such shares are acquired prior to the expiration of the Offer, in no event later than the expiration of the Offer)), each Stockholder will: (i) shall deliver or cause to be delivered pursuant to the Exchange Agent designated in terms of the Offer (A) in the case of Subject Shares represented by a properly completed Certificate, a letter of election and transmittal with respect to all of such Stockholder’s Covered Subject Shares complying with the terms of the Offer, together with the Certificate(s) representing all such Subject Shares that are certificated, (B) in the case of a Uncertificated Shares, written instructions to such Stockholder’s broker, dealer or other nominee that such Subject Shares be tendered, including a reference to this Agreement, and requesting delivery of an “agent’s message” (or such other evidence, if and any, of transfer as the Paying Agent may reasonably request) with respect to the extent such Covered Shares are held in certificated form, the certificates representing the Covered Subject Shares, and (C) all other documents or instruments required to be delivered pursuant to by the terms of the Offer; and/or (ii) instruct its broker or Offer in order to effect the valid tender of such other Person who is Stockholder’s Subject Shares in accordance with the holder terms of the Offer and the Merger Agreement. Each Stockholder agrees that, once any of such Stockholder’s Covered Subject Shares are tendered, such Stockholder will not withdraw and will cause not to promptly tender be withdrawn such Subject Shares in from the Offer pursuant to at any time, unless and until this Agreement shall have been validly terminated in accordance with Section 5.2. As set forth in the terms and conditions Merger Agreement, if the Offer is terminated or withdrawn by Merger Sub, or the Merger Agreement is terminated prior to the purchase of the Offer. (b) Each Stockholder acknowledges and agrees that Merger Sub’s obligation to accept for payment Shares tendered in the Offer, including Parent or Merger Sub shall, and shall cause any Shares depositary or paying agent acting on behalf of Parent and Merger Sub to, promptly return all tendered by any shares to such Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.

Appears in 1 contract

Samples: Tender and Support Agreement (Ruths Hospitality Group, Inc.)

Agreement to Tender. (a) Prior Subject to any restriction imposed as a result of any prior pledge or other hypothecation of Shares by the Termination Date (as defined herein)Shareholder, if requested in writing by Parent, but in no event prior to such written request, each Stockholder Shareholder hereby severally irrevocably and unconditionally agrees to tender, validly tender (and not withdraw) or cause to be tendered, validly tendered (and not withdrawn) pursuant to and in accordance with the terms of the Offer all of the Shares that Shareholder owns as of the date hereof as well as any additional Shares that Shareholder may own, whether acquired by purchase, exercise of options or otherwise, at any time after the date hereof (the "Shareholder Shares"). Within five business days after the date hereof (or within five business days after any Shareholder Shares are acquired during pendency of the Offer, such Stockholder’s Covered Shares (other than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which the Stockholder does not have the power to dispose of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreementif later), and agrees that it will not withdraw or permit the withdrawal of such Shareholder shall deliver (with respect to Shareholder Shares from the Offer. Within three (3controlled by Shareholder) Business Days after receipt of the written request of Parent, but in no event prior to receipt of such written request, each Stockholder will: (i) deliver to the Exchange Agent depositary designated in the Offer (Ai) a properly completed letter of election and transmittal with respect to such Stockholder’s Covered the Shareholder Shares complying with the terms of the Offer, (Bii) if and to the extent such Covered Shares are held in certificated form, the certificates representing all of the Covered Shares, Shareholder Shares and (Ciii) all other documents or instruments required to be delivered pursuant to the terms of the Offer; and/or . With respect to Shares subject to a prior pledge or hypothecation agreement, Shareholder agrees that (i) he will not tender or deliver such Shares other than pursuant to the Offer or to the applicable pledge holder and (ii) instruct its broker he will use his best efforts to cause the pledge holder to tender the Shares pursuant to the Offer or such other Person who is to consent to, or otherwise remove any restrictions prohibiting, the holder of any tender of such Stockholder’s Covered Shares to promptly tender such Shares in by the Offer pursuant to and in accordance with the terms and conditions of the OfferShareholder. (b) Each Stockholder acknowledges and agrees that Merger Sub’s obligation to accept for payment Shares tendered in the Offer, including any Shares tendered by any Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.

Appears in 1 contract

Samples: Shareholder Agreement (Compagnie De Saint Gobain)

Agreement to Tender. (a) Prior Subject to the Termination Date (as defined herein), if requested in writing by Parent, but in no event prior to such written requestterms of this Agreement, each Stockholder hereby severally agrees to tender, tender or cause to be tenderedtendered in the Offer all of such Stockholder’s Subject Shares [(other than Company Options that are not exercised and Company RSUs that are not settled, in each case during the term of this Agreement)] pursuant to and in accordance with the terms of the Offer, such Stockholder’s Covered Shares free and clear of all Encumbrances except for Permitted Encumbrances (other than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which defined below). Without limiting the Stockholder does not have the power to dispose of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three (3) Business Days after receipt generality of the written request of Parentforegoing, as promptly as practicable after, but in no event prior to receipt later than (1) the later of such written request, each Stockholder will: (i) deliver to ten (10) business days after, the commencement (within the meaning of Rule 14d-2 under the Exchange Agent designated in Act) of the Offer Offer, or (Aii) a properly completed the date of delivery of the letter of election and transmittal with respect to the Offer or, with respect to shares held in “street name”, the date of delivery of materials from the applicable nominee or broker providing executable instructions regarding tendering into the Offer (but in any event prior to the Expiration Date); provided that each Stockholder shall notify Parent on the fifth (5th) business day following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer if such Stockholder has not received such letter of transmittal or materials as of such date or (2) in the case of any Shares or securities directly or indirectly acquired subsequent to such date, whether by purchase, upon exercise or conversion of any securities or otherwise, no later than two (2) business days after such acquisition, each Stockholder shall deliver or cause to be delivered pursuant to the terms of the Offer (a) a letter of transmittal with respect to all of such Stockholder’s Covered Subject Shares complying with the terms of the Offer, (Bb) a certificate representing all such Subject Shares or an “agent’s message” (or such other evidence, if and to any, of transfer as the extent such Covered Shares are held Depository Agent may reasonably request) in certificated form, the certificates representing the Covered case of a book-entry share of any uncertificated Subject Shares, and (Cc) all other documents or instruments instruments, to the extent applicable, required to be delivered by other Company stockholders pursuant to the terms of the Offer; and/or Offer in order to effect the valid tender of the Subject Shares [(ii) instruct its broker or such other Person who is it being understood that this sentence shall not apply to Company Options that are not exercised and Company RSUs that are not settled, in each case during the holder term of this Agreement)]. Each Stockholder agrees that, once any of such Stockholder’s Covered Subject Shares to promptly tender are tendered, such Stockholder will not withdraw such Subject Shares in from the Offer pursuant to Offer, unless and until this Agreement shall have been validly terminated in accordance with the terms and conditions Section 5.2. [For clarity, no Stockholder shall be required to exercise any unexercised Company Options held by such Stockholder in order to comply with any provision of the Offer. (b) Each Stockholder acknowledges and agrees that Merger Sub’s obligation to accept for payment Shares tendered in the Offerthis Agreement, including but any Shares tendered that result from the settlement during the term of this Agreement of any Company Option exercised by such Stockholder or any Stockholder, is subject Company RSU held by such Stockholder shall immediately upon such settlement cease to qualify for the terms exemptions in this Agreement that are applicable to unexercised Company Options and conditions of the Merger Agreement and the Offerunsettled Company RSUs.]

Appears in 1 contract

Samples: Tender and Support Agreement (Decibel Therapeutics, Inc.)

Agreement to Tender. (a) Prior Subject to the Termination Date (as defined herein), if requested in writing by Parent, but in no event prior to such written requestterms of this Agreement, each Stockholder hereby severally agrees to tender, tender or cause to be tenderedtendered in the Offer all of such Stockholder’s Existing Shares and other shares of Common Stock over which it has acquired beneficial ownership after the date hereof (including any shares of Common Stock acquired by means of purchase, dividend or distribution, or issued upon the exercise of any stock options, warrants or other rights to acquire Common Stock or the conversion of any convertible securities or otherwise) (collectively, the “New Shares”, and together with the Existing Shares, the “Shares”), pursuant to and in accordance with the terms of the Offer. Without limiting the generality of the foregoing, such Stockholder’s Covered Shares as promptly as practicable after the commencement (other than unexercised options, warrants, and other rights to acquire Shares and other than any Shares as to which within the Stockholder does not have meaning of Rule 14d-2 under the power to dispose Exchange Act) of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three (3) Business Days after receipt of the written request of Parent, but in no event prior to receipt of such written request, each Stockholder will: (i) shall deliver or cause to be delivered pursuant to the Exchange Agent designated in terms of the Offer (Aa) a properly completed letter of election and transmittal with respect to all of such Stockholder’s Covered Shares complying with the terms of the Offer, (Bb) a certificate representing all such Shares that are certificated or, in the case of a book-entry share of any uncertificated Shares, written instructions to such Stockholder’s broker, dealer or other nominee that such Shares be tendered, including a reference to this Agreement, and requesting delivery of an “agent’s message” (or such other evidence, if and to any, of transfer as the extent such Covered Shares are held in certificated form, the certificates representing the Covered SharesDepository Agent may reasonably request), and (Cc) all other documents or instruments required to be delivered by other Company stockholders pursuant to the terms of the Offer; and/or (ii) instruct its broker or such other Person who is the holder of . Each Stockholder agrees that, once any of such Stockholder’s Covered Shares are tendered, such Stockholder will not withdraw or will cause not to promptly tender be withdrawn such Shares in from the Offer pursuant to Offer, unless and until this Agreement shall have been validly terminated in accordance with the terms and conditions of the OfferArticle IV. (b) Each Stockholder acknowledges and agrees that Merger Sub’s obligation to accept for payment Shares tendered in the Offer, including any Shares tendered by any Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.

Appears in 1 contract

Samples: Tender and Support Agreement (Ocera Therapeutics, Inc.)

Agreement to Tender. The Stockholder shall validly tender and shall not withdraw (a) Prior to the Termination Date (as defined herein), if requested in writing by Parent, but in no event prior to such written request, each Stockholder hereby severally agrees to tender, or cause the record owner of such shares to be tendered, validly tender) the Stockholder’s Shares pursuant to and in accordance with the terms of the Offer, such Stockholder’s Covered Shares (other Offer and this Section 4. Not later than unexercised options, warrants, the fifth business day after commencement of the Offer pursuant to Section 1.1 of the Merger Agreement and other rights to acquire Shares Rule 14d-2 under the Exchange Act and other than any Shares as to which the receipt by the Stockholder does not have the power to dispose of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three (3) Business Days after receipt of the written request of Parentrelevant Offer Documents, but in no event prior to receipt of such written request, each the Stockholder will: shall (i) deliver to the Exchange Agent depositary designated in the Offer Offer, (A) a properly completed letter of election and transmittal with respect to such Stockholder’s Covered the Shares complying with the terms of the Offer and in the form delivered to the Stockholder pursuant to the Offer, (B) if and to the extent such Covered Shares are held in certificated form, the certificates representing the Covered Shares, and (C) all other documents or instruments required to be delivered pursuant to the terms of the Offer; , and/or (ii) instruct its broker or such other Person person who is the holder of record of any of such Stockholder’s Covered Shares beneficially owned by the Stockholder to promptly tender such Shares for exchange in the Offer pursuant to and in accordance with the terms and conditions of the Offer. (b) Each . Until the termination of the Offer or the Expiration Date, the Stockholder shall not tender the Shares into any exchange or tender offer commenced by a third party other than Parent, Merger Sub or any other subsidiary of Parent. Parent acknowledges and agrees that Merger Sub’s obligation to accept for payment Shares tendered this Agreement shall not be binding upon Stockholder in the Offer, including any Shares tendered by any Stockholder, is subject to the terms and conditions of event the Merger Agreement is amended by the parties thereto to lower or change the form of consideration set forth in the Offer Price or the Cash Portion or the Stock Portion thereof (as such terms are defined in the Merger Agreement) and otherwise shall not be binding upon Stockholder on and after the OfferExpiration Date.

Appears in 1 contract

Samples: Tender and Voting Agreement (Quovadx Inc)

Agreement to Tender. (a) Prior Subject to the Termination Date (as defined herein), if requested in writing by Parent, but in no event prior to such written requestterms of this Agreement, each Stockholder hereby severally agrees to tender, Shareholder shall validly tender or cause to be tendered, tendered in the Offer all of such Shareholder’s Committed Shares pursuant to and in accordance with the terms of the Offer, such Stockholder’s Covered Shares free and clear of all Liens (other than unexercised optionsPermitted Share Liens (as defined below)). (b) Without limiting the generality of the foregoing, warrantsas promptly as practicable after, and other rights to acquire Shares and other but in no event later than any Shares as to which ten (10) Business Days after, the Stockholder does not have commencement (within the power to dispose meaning of or direct Rule 14d-2 under the disposition Exchange Act) of such Sharesthe Offer (or, or has such power only in a fiduciary capacity for the benefit of Persons other if later, no later than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three (3) Business Days after receipt following the date of delivery of the written request letter of Parent, but in no event prior transmittal with respect to receipt of such written requestthe Offer), each Stockholder will: Shareholder shall (i) deliver pursuant to the Exchange Agent designated in terms of the Offer (A) a properly completed letter of election and transmittal with respect to such StockholderShareholder’s Covered Committed Shares complying with the terms of the Offer, (B) a Certificate or Certificates (or affidavits of loss in lieu thereof) representing such Committed Shares or an “agent’s message” (or such other evidence, if and to any, of transfer as the extent such Covered Shares are held Paying Agent may reasonably request) in certificated form, the certificates representing the Covered Sharescase of a Book-Entry Share, and (C) all other documents or instruments required to be delivered by shareholders of the Company pursuant to the terms of the Offer; Offer and/or (ii) instruct its such Shareholder’s broker or such other Person who that is the holder of record of any of Committed Shares beneficially owned by such Stockholder’s Covered Shares Shareholder to promptly tender such Committed Shares in the Offer pursuant to and in accordance with this Section 1.1 and the terms and conditions of the Offer. (bc) Each Stockholder acknowledges and Shareholder agrees that Merger Subthat, once any of such Shareholder’s obligation Committed Shares are tendered, such Shareholder will not withdraw or cause to accept for payment be withdrawn any of such Shares tendered in from the Offer, including any Shares tendered by any Stockholder, is subject to the terms unless and conditions of the Merger until this Agreement and the Offershall have been validly terminated in accordance with Section 5.2.

Appears in 1 contract

Samples: Tender and Support Agreement (Qumu Corp)

Agreement to Tender. (a) Prior Subject to the Termination terms and conditions of this Agreement, unless the Expiration Date has occurred, Stockholder shall validly tender (as defined herein), if requested in writing and shall not withdraw) the Shares (including any Shares acquired by Parent, but in no event prior to such written request, each Stockholder hereby severally agrees to tender, or cause to be tendered, after commencement of the Offer) pursuant to and in accordance with the terms of the Offer. Unless the Expiration Date has occurred, such Stockholder’s Covered Shares (other than unexercised optionsStockholder shall, warrants, pursuant to and other rights to acquire Shares in accordance with the terms and other than any Shares as to which the Stockholder does not have the power to dispose conditions of or direct the disposition of such Shares, or has such power only in a fiduciary capacity for the benefit of Persons other than those who are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of such Shares from the Offer. Within three , (3) Business Days after receipt of the written request of Parent, but in no event prior to receipt of such written request, each Stockholder will: (ia) deliver to the Exchange Agent depositary designated in the Offer Offer, (Ai) a properly completed letter of election and transmittal with respect to such Stockholder’s Covered the Shares complying with the terms of the Offer, (Bii) if and to the extent such Covered Shares are held in certificated form, the certificates representing the Covered Shares, if applicable, or, in the case of a book-entry transfer of any uncertificated Shares, an “agent’s message” or such other evidence of transfer as the depositary may reasonably request and (Ciii) all other documents or instruments required to be delivered by Stockholder pursuant to the terms of the Offer; , and/or (iib) instruct its broker or such other Person person who is the holder of record of any of such Stockholder’s Covered Shares to promptly tender such Shares in the Offer pursuant to the terms and conditions of the Offer. Unless the Expiration Date has occurred, Stockholder shall not tender the Shares into any exchange or tender offer commenced by a Person other than Parent, Merger Sub or any other Subsidiary of Parent. Notwithstanding the foregoing, if the Offer shall have been terminated in accordance with the terms of the Merger Agreement or the Expiration Date occurs, in each case after Stockholder has tendered any Shares in the Offer in accordance with this Section 4, Stockholder may withdraw any such Shares pursuant to and in accordance with the terms and conditions of the Offer. (b) Each Stockholder acknowledges and agrees that Merger Sub’s obligation to accept for payment Shares tendered in the Offer, including any Shares tendered by any Stockholder, is subject to the terms and conditions of the Merger Agreement and the Offer.

Appears in 1 contract

Samples: Tender and Voting Agreement (LD Commodities Sugar Holdings LLC)