CERTAIN CONDITIONS TO THE OFFER. Notwithstanding any other provision of the Offer, and subject to the terms and conditions of the Merger Agreement, the Purchaser shall not be obligated to accept for payment any Shares until all authorizations, consents, orders and approvals of, and declarations and filings with, and all expirations of waiting periods imposed by, any Governmental Entity which, if not obtained in connection with the consummation of the transactions contemplated by the Merger Agreement, could reasonably be expected to have a Material Adverse Effect on the Company or prevents the Company, Numico or Purchaser from consummating the transactions contemplated by the Merger Agreement (collectively, "Required Regulatory Approvals") shall have been obtained, made or satisfied, including the expiration or earlier termination of any waiting periods applicable under the HSR Act, and the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act) pay for, and may delay the acceptance for payment of or payment for, any Shares tendered in the Offer and (subject to the terms and conditions of the Merger Agreement, including Section 1.1(b) thereof), may amend, extend or terminate the Offer if, immediately prior to the expiration of the Offer (as extended in accordance with the Merger Agreement) the Minimum Condition shall not have been satisfied or any of the following shall occur: (a) there shall be threatened or pending any action, litigation or proceeding (hereinafter, an "Action") by any Governmental Entity or other Person: (i) challenging the acquisition by Numico or the Purchaser of Shares or seeking to restrain or prohibit the consummation of the Offer or the Merger; (ii) seeking to prohibit or impose any material limitation (including any hold separate obligation) on Numico's, the Purchaser's or any of their respective affiliates' ownership or operation of all or any material portion of the business or assets of the Company and its subsidiaries taken as a whole or Numico and its subsidiaries taken as a whole; or (iii) seeking to impose material limitations on the ability of Numico or the Purchaser effectively to acquire or hold, or to exercise full rights of ownership of, the Shares including the right to vote the Shares purchased by them on an equal basis with all other Shares on all matters properly presented to the shareholders of the Company; or (b) any statute, rule, regulation, order or injunction shall be enacted, promulgated, entered, enforced or deemed to or become applicable to the Merger Agreement, the Offer, the Merger, the Shareholder Agreement or any other action shall have been taken by any court or other Governmental Entity, that could reasonably be expected to result in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iii) of paragraph (a) above; or (c) (i) the representations and warranties of the Company as set forth in Section 3.1(b) of the Merger Agreement shall not be true and correct in all material respects as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (ii) the representations and warranties of the Company set forth in the Merger Agreement (other than those set forth in Section 3.1(b) of the Merger Agreement), (x) to the extent qualified by Material Adverse Effect shall not be true and correct and (y) to the extent not qualified by Material Adverse Effect shall not be true and correct, except that this clause (y) shall be deemed satisfied so long as any failures of such representations and warranties to be true and correct, taken together, do not have a Material Adverse Effect on the Company, in the case of each of clauses (x) and (y) as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (iii) the Company shall have breached or failed to comply in any material respect with any of its material obligations, covenants or agreements under the Merger Agreement; or (iv) any change or event shall have occurred that has, or could reasonably be expected to have, a Material Adverse Effect on the Company; or (d) there shall have occurred (i) any general suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market; (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, the European Union or the United Kingdom; (iii) any material limitation (whether or not mandatory) by any Governmental Entity on the extension of credit by banks or other lending institutions; (iv) a suspension of, or limitation on, the currency exchange markets or the imposition of, or material changes in, any currency or exchange control laws in the United States or abroad; (v) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States or the Netherlands which could reasonably be expected to have a Material Adverse Effect on Numico or the Company or prevent (or materially delay) the consummation of the Offer; or (vi) in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or a worsening thereof; or (i) if the holders of Shares which are the subject of the Shareholder Agreement shall have either (A) failed to tender in the Offer (and not withdrawn) a majority of the outstanding Shares or (B) in any material respect, failed to vote, failed to act by consent or have interfered with or have frustrated the exercise of the rights conferred upon the holders of proxies identified and set forth in the Shareholder Agreement, or (ii) any of the representations and warranties of any such party set forth in the Shareholder Agreement shall not be true in any material respect, in each case, when made or at any time prior to the consummation of the Offer as if made at and as of such time, or (iii) the Shareholder Agreement shall have been invalidated or terminated with respect to any Shares subject thereto; or (f) the Board of Directors of the Company (or any special committee thereof) shall have withdrawn or materially modified in any manner adverse to Numico or the Purchaser its approval or recommendation of the Offer, the Merger or the Merger Agreement; or (g) the Company shall have entered into or shall have publicly announced its intention to enter into, an agreement or agreement in principle with respect to any Acquisition Proposal; or (h) the Merger Agreement or the Shareholder Agreement shall have been terminated in accordance with its terms. The conditions set forth in clauses (a) through (h) are for the sole benefit of Numico and the Purchaser and may be asserted by Numico and the Purchaser regardless of the circumstances giving rise to such condition and may be waived by Numico and the Purchaser in whole or in part at any time and from time to time, by express and specific action to that effect in their sole discretion. The failure by Numico or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The capitalized terms used in this Section 12 shall have the meanings set forth in the Merger Agreement.
Appears in 2 contracts
Samples: Offer to Purchase (CDD Partners LTD Et Al), Offer to Purchase (Rexall Sundown Inc)
CERTAIN CONDITIONS TO THE OFFER. Notwithstanding any other provision of the Offer, and subject to the terms and conditions of the Merger Agreement, the Purchaser shall not be obligated to accept for payment any Shares until all authorizations, consents, orders and approvals of, and declarations and filings with, and all expirations of waiting periods imposed by, any Governmental Entity which, if not obtained in connection with the consummation of the transactions contemplated by the Merger Agreement, could reasonably be expected to have a Material Adverse Effect on the Company or prevents the Company, Numico or Purchaser from consummating the transactions contemplated by the Merger Agreement (collectively, "Required Regulatory Approvals") shall have been obtained, made or satisfied, including the expiration or earlier termination of any waiting periods applicable under the HSR Act, and the Purchaser LCC shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (SEC, including Rule 14e-1(c) promulgated under the Exchange Act) Act (relating to LCC's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or or, subject to the restriction referred to above, the payment for, any tendered Shares tendered in and Assignments, and may amend the Offer and (subject to the terms and conditions of the Merger Agreement, including Section 1.1(b) thereof), may amend, extend or terminate the Offer ifand not accept for payment any tendered Shares and Assignments. Notwithstanding any other provisions of the Offer, immediately prior or any extension of the Offer, LCC will not be required to accept for purchase any Shares or Assignments if any of the following conditions has occurred or exists or has not been satisfied or waived before or as of the expiration of the Offer (as extended in accordance with the Merger Agreement) the Minimum Condition shall not have been satisfied or any of the following shall occurOffer:
(a) there shall be threatened or pending any actiongovernmental approval has not been obtained, litigation or proceeding (hereinafterwhich approval LCC shall, an "Action") by any Governmental Entity or other Person: (i) challenging the acquisition by Numico or the Purchaser of Shares or seeking to restrain or prohibit the consummation of the Offer or the Merger; (ii) seeking to prohibit or impose any material limitation (including any hold separate obligation) on Numico'sin its sole discretion, the Purchaser's or any of their respective affiliates' ownership or operation of all or any material portion of the business or assets of the Company and its subsidiaries taken as a whole or Numico and its subsidiaries taken as a whole; or (iii) seeking to impose material limitations on the ability of Numico or the Purchaser effectively to acquire or hold, or to exercise full rights of ownership of, the Shares including the right to vote the Shares purchased by them on an equal basis with all other Shares on all matters properly presented to the shareholders of the Company; or
(b) any statute, rule, regulation, order or injunction shall be enacted, promulgated, entered, enforced or deemed to or become applicable to the Merger Agreement, the Offer, the Merger, the Shareholder Agreement or any other action shall have been taken by any court or other Governmental Entity, that could reasonably be expected to result in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iii) of paragraph (a) above; or
(c) (i) the representations and warranties of the Company as set forth in Section 3.1(b) of the Merger Agreement shall not be true and correct in all material respects as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of deem necessary for the consummation of the Offer as though made on and as contemplated hereby (At present, LCC is not aware of such date; (ii) any filings, approvals or other actions by or with any domestic, foreign or supranational governmental authority or administrative or regulatory agency that would be required prior to the representations and warranties acquisition of the Company set forth in Shares by LCC pursuant to the Merger Agreement Offer as contemplated herein, other than consent of the Bermuda Monetary Authority for the transfer of the Shares under the Exchange Control Act of 1972 of Bermuda. LCC intends to apply for that consent promptly after the date of this Offer to Purchase.); See "The Tender Offer - Certain Legal Matters; Required Regulatory Approvals;"
(b) any tender or exchange offer (other than those set forth in Section 3.1(bthe Offer) with respect to some or all of the Merger Agreement)outstanding Shares shall have been proposed, (x) to the extent qualified announced or made by Material Adverse Effect shall not be true and correct and (y) to the extent not qualified by Material Adverse Effect shall not be true and correctany person, except that this clause (y) shall be deemed satisfied so long as any failures of such representations and warranties to be true and correctentity or group or a merger, taken together, do not have a Material Adverse Effect on the Company, in the case of each of clauses (x) and (y) as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (iii) acquisition or other business combination proposal for the Company shall have breached been proposed, announced or failed to comply made by any person, entity or group;
(c) any action or proceeding shall have been instituted or threatened in any material court or by or before any governmental agency or body with respect with any of its material obligationsto the Offer which, covenants or agreements under the Merger Agreement; or (iv) any change or event shall have occurred that hasin LLC's judgment, or could would reasonably be expected to have, a Material Adverse Effect on impair its ability to proceed with the Company; orOffer;
(d) there any law, statute, rule or regulation shall have occurred (i) any general suspension of trading inbeen adopted or enacted which, or limitation on prices for, securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market; (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United Statesjudgment of LCC, the European Union or the United Kingdom; (iii) any material limitation (whether or not mandatory) by any Governmental Entity on the extension of credit by banks or other lending institutions; (iv) a suspension of, or limitation on, the currency exchange markets or the imposition of, or material changes in, any currency or exchange control laws in the United States or abroad; (v) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States or the Netherlands which could would reasonably be expected to have a Material Adverse Effect on Numico or the Company or prevent (or materially delay) the consummation of impair its ability to proceed with the Offer; or (vi) in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or a worsening thereof; or;
(i) if the holders of Shares which are the subject of the Shareholder Agreement shall have either (A) failed to tender in the Offer (and not withdrawne) a majority of the outstanding Shares or (B) in any material respect, failed to vote, failed to act by consent or have interfered with or have frustrated the exercise of the rights conferred upon the holders of proxies identified and set forth in the Shareholder Agreement, or (ii) any of the representations and warranties of any such party set forth in the Shareholder Agreement shall not be true in any material respect, in each case, when made or at any time prior to the consummation of the Offer as if made at and as of such time, or (iii) the Shareholder Agreement banking moratorium shall have been invalidated declared by United States federal or terminated state authorities which, in the judgment of LCC, would reasonably be expected to impair its ability to proceed with respect to any Shares subject theretothe Offer; or
(f) trading on the Board of Directors of New York Stock Exchange or generally in the Company (or any special committee thereof) shall have withdrawn or materially modified in any manner adverse to Numico or the Purchaser its approval or recommendation of the Offer, the Merger or the Merger Agreement; or
(g) the Company shall have entered into or shall have publicly announced its intention to enter into, an agreement or agreement in principle with respect to any Acquisition Proposal; or
(h) the Merger Agreement or the Shareholder Agreement United States over-the-counter market shall have been terminated suspended by order of the SEC or any other governmental authority which, in accordance the judgment of LCC, would reasonably be expected to impair its ability to proceed with its termsthe Offer. The foregoing conditions set forth in clauses (a) through (h) are for the sole benefit of Numico and the Purchaser LCC and may be asserted by Numico and the Purchaser regardless of the circumstances giving rise to it, or LCC may waive such condition and may be waived by Numico and the Purchaser conditions, in whole or in part at any time and or from time to time, by express and specific action to that effect before or as of the expiration of the Offer, in their its sole discretion. The failure by Numico or the Purchaser LCC at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any such right, the . The waiver of any such right with respect to any particular facts and other or circumstances shall not be deemed a waiver with respect to any other facts and or circumstances, and each such right shall will be deemed an ongoing right that may be asserted at any time and from time to time. The capitalized terms used A public announcement shall be made of a material change in, or waiver of, the foregoing conditions, and the Offer may, in this Section 12 shall have the meanings set forth certain circumstances, be extended in the Merger Agreementconnection with any such change or waiver.
Appears in 1 contract
CERTAIN CONDITIONS TO THE OFFER. Notwithstanding any other provision of the Offer, and subject to the terms and conditions of the Merger Agreement, the Purchaser shall not be obligated to accept for payment any Shares until all authorizations, consents, orders and approvals of, and declarations and filings with, and all expirations of waiting periods imposed by, any Governmental Entity which, if not obtained in connection with the consummation of the transactions contemplated by the Merger Agreement, could reasonably be expected to have a Material Adverse Effect on the Company or prevents the Company, Numico or Purchaser from consummating the transactions contemplated by the The Merger Agreement (collectively, "Required Regulatory Approvals") shall have been obtained, made or satisfied, including the expiration or earlier termination of any waiting periods applicable under the HSR Act, and provides that the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (SEC, including Rule 14e-1(c) promulgated under the Exchange Act) Act (relating to the Purchaser’s obligation to pay for or return tendered shares of Starbase common stock promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or the payment for, any Shares tendered in shares of Starbase common stock, and may amend the Offer and (subject to consistent with the terms and conditions of the Merger Agreement, including Section 1.1(b) thereof), may amend, extend Agreement or terminate the Offer and not accept for payment any tendered shares of Starbase common stock, if, immediately prior to the expiration of the Offer (as extended in accordance with the Merger Agreement) : • the Minimum Condition shall not have been satisfied at the time of expiration of the Offer, as it may be extended; or • at any time on or after the date of the Merger Agreement and prior to the expiration of the Offer, as it may be extended, any of the following events or circumstances shall occur:
(a) there occur or exist or shall be threatened or pending any action, litigation or proceeding (hereinafter, an "Action") determined by any Governmental Entity or other Person: (i) challenging the acquisition by Numico Borland or the Purchaser to have occurred or exist, and in the reasonable judgment of Shares Borland or seeking to restrain or prohibit the consummation Purchaser, and regardless of the Offer or the Merger; (ii) seeking to prohibit or impose any material limitation circumstances (including any hold separate obligation) on Numico's, the Purchaser's action or any of their respective affiliates' ownership or operation of all or any material portion of the business or assets of the Company and its subsidiaries taken as a whole or Numico and its subsidiaries taken as a whole; or (iii) seeking to impose material limitations on the ability of Numico inaction by Borland or the Purchaser effectively to acquire other than an action or hold, inaction by Borland or to exercise full rights the Purchaser constituting a material breach of ownership of, the Shares including the right to vote the Shares purchased by them on an equal basis with all other Shares on all matters properly presented to the shareholders of the Company; or
(b) any statute, rule, regulation, order or injunction shall be enacted, promulgated, entered, enforced or deemed to or become applicable to the Merger Agreement) giving rise to such event or circumstance, such event or circumstance makes it inadvisable to proceed with the Offer, the Merger, the Shareholder Agreement Offer and/or with such acceptance for payment of or payment for shares of Starbase common stock: ù any waiting period under any applicable foreign antitrust law or regulation or other legal requirement shall not have expired or been terminated or any Consent required under any applicable foreign antitrust law or regulation or other action legal requirement shall not have been taken by any court or other Governmental Entity, that could reasonably be expected to result in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iii) of paragraph (a) aboveobtained; or
(c) (i) ù the representations and warranties of the Company as Starbase set forth in Section 3.1(b) of the Merger Agreement which are not qualified by “materiality” or “material adverse effect” shall not be have been true and correct in all material respects as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (ii) the representations and warranties of the Company set forth in the Merger Agreement (other than those set forth in Section 3.1(b) of the Merger Agreement), (x) to the extent qualified by Material Adverse Effect or shall not be true and correct and (y) to the extent not qualified by Material Adverse Effect shall not be true and correct, except that this clause (y) shall be deemed satisfied so long in all material respects as of any failures subsequent date as though made on or as of such subsequent date, or the representations and warranties to be that are qualified by “materiality” or “material adverse effect” shall not have been true and correct, taken together, do not have a Material Adverse Effect on the Company, accurate in the case of each of clauses (x) and (y) all respects as of the date of the Merger Agreement or shall not be true and (except to the extent such representations and warranties speak correct in all respects as of an earlier date) as of the consummation of the Offer any subsequent date as though made on and or as of such date; subsequent date (iii) the Company except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be true and correct as of such date or with respect to such period), or Starbase shall have breached or failed to perform or comply in any material respect with any obligation, agreement or covenant required by the Merger Agreement to be performed or complied with by it; ù since the date of its material obligations, covenants or agreements under the Merger Agreement; , there shall have occurred any material adverse effect on Starbase and its subsidiaries, or (iv) any change or event shall have occurred that hasor circumstance shall exist that, in combination with any other events or circumstances, could reasonably be expected to havehave a material adverse effect on Starbase and its subsidiaries; ù any consent identified in a schedule to the Merger Agreement, a Material Adverse Effect on or any other material consent required to be obtained in connection with the CompanyOffer or the Merger, shall not have been obtained or shall not be in full force and effect; or
(d) ù any temporary restraining order, preliminary or permanent injunction or other order preventing the purchase by the Purchaser of shares of Starbase common stock in the Offer or completion of the Merger shall have been issued by any court of competent jurisdiction and remain in effect, or there shall be any legal requirement enacted or deemed applicable by a governmental body to the Offer or the Merger that makes the purchase by the Purchaser of shares of Starbase common stock in the Offer or completion of the Merger illegal; ù there shall be pending or threatened any legal proceeding in which a governmental body is or is threatened to become a party or is otherwise involved or either Borland or Starbase shall have received a communication from any governmental body in which such governmental body indicates the possibility of commencing any legal proceeding or taking any other action: (i) challenging or seeking to restrain or prohibit the purchase of shares of Starbase common stock in the Offer or completion of the Merger; (ii) relating to the Offer or the Merger and seeking to obtain from Borland or any of Starbase and its subsidiaries, any damages or other relief that may be material to Borland or Starbase and its subsidiaries; (iii) seeking to prohibit or limit in any material respect Borland’s or the Purchaser’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of Starbase; (iv) that could materially and adversely affect the right of Borland or any of Starbase and its subsidiaries to own the assets or operate the business of Starbase and its subsidiaries; or (v) seeking to compel any of Starbase and its subsidiaries, Borland or any subsidiary of Borland to dispose of or hold separate any material assets as a result of the Offer or the Merger; ù there shall be pending any legal proceeding in which, in the reasonable judgment of Borland, there is a reasonable possibility of an outcome that could have a material adverse effect on Starbase and its subsidiaries or a material adverse effect on Borland: (i) challenging or seeking to restrain or prohibit the purchase of shares of Starbase common stock in the Offer or completion of the Merger; (ii) relating to the Offer or the Merger and seeking to obtain from Borland or any of Starbase and its subsidiaries, any damages or other relief that may be material to Borland or Starbase and its subsidiaries; (iii) seeking to prohibit or limit in any material respect Borland’s or the Purchaser’s ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of Starbase; (iv) that would materially and adversely affect the right of Borland or any of Starbase and its subsidiaries, to own the assets or operate the business of any of Starbase and its subsidiaries; or (v) seeking to compel any of Starbase and its subsidiaries, Borland or any subsidiary of Borland to dispose of or hold separate any material assets as a result of the Offer or the Merger, provided that this condition shall not apply with respect to any legal proceeding relating to the ownership of certain Starbase shares held in escrow for the benefit of the founders of Starbase; ù there shall not have occurred and be continuing: (i) (A) any general suspension of trading in, or limitation on prices for, securities on The Nasdaq Stock Market for a period in excess of three hours (excluding any organized halt triggered solely as a result of a specified decrease in a market index or suspensions or limitations resulting solely from physical damage, technological or software breakdowns or malfunctions or interference with such exchange not related to market conditions) or (B) any decline in any of the New York Stock ExchangeDow Jxxxx Industrial Average, the American Stock Exchange Standard & Poor’s Index of 500 Industrial Companies, the Nasdaq Composite Index or the Nasdaq National MarketComputer and Data Processing Index in excess of 15% measured from the close of business on the date of the Merger Agreement; (ii) a declaration by a governmental body of a banking moratorium or any suspension of payments in respect of banks in the United States, the European Union or the United Kingdom; (iii) an act of terrorism or a commencement of a war, armed hostilities or other international or national calamity directly or indirectly involving the United States, which in any case could have a material adverse effect on Starbase and its subsidiaries or could materially adversely affect Borland’s or the Purchaser’s ability to purchase shares of Starbase common stock in the Offer or consummate the Merger; (iv) any extraordinary limitation (whether or not mandatory) by any Governmental Entity governmental body on the extension of credit generally by banks or other lending financial institutions; or (ivv) a suspension ofchange in general financial, bank or limitation on, capital market conditions which materially and adversely affects the currency exchange markets or the imposition of, or material changes in, any currency or exchange control laws ability of financial institutions in the United States to extend credit or abroadsyndicate loans; ù Starbase’s board of directors (vi) shall have withdrawn, modified or changed in a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States manner adverse to Borland or the Netherlands which could reasonably be expected to have a Material Adverse Effect on Numico or Purchaser (including by amendment of the Company or prevent (or materially delaySchedule 14D-9) the consummation of the Offer; Starbase Board Recommendation, (ii) shall have recommended or remained neutral with respect to an Acquisition Proposal, (viiii) in the case of shall have adopted any resolution or announced any intention to effect any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or a worsening thereof; or
(i) if the holders of Shares which are the subject of the Shareholder Agreement shall have either (A) failed to tender in the Offer (and not withdrawn) a majority of the outstanding Shares or (B) in any material respect, failed to vote, failed to act by consent or have interfered with or have frustrated the exercise of the rights conferred upon the holders of proxies identified and set forth in the Shareholder Agreementforegoing, or (ii) any of the representations and warranties of any such party set forth in the Shareholder Agreement shall not be true in any material respect, in each case, when made or at any time prior to the consummation of the Offer as if made at and as of such time, or (iii) the Shareholder Agreement shall have been invalidated or terminated with respect to any Shares subject thereto; or
(f) the Board of Directors of the Company (or any special committee thereofiv) shall have withdrawn or materially modified in any manner adverse fail to Numico or the Purchaser its approval or recommendation of the Offer, reaffirm Starbase Board Recommendation within five business days after Borland requests that Starbase Board Recommendation be reaffirmed; ù the Merger or the Merger Agreement; or
(g) the Company shall have entered into or shall have publicly announced its intention to enter into, an agreement or agreement in principle with respect to any Acquisition Proposal; or
(h) the Merger Agreement or the Shareholder Agreement shall have been terminated in accordance with its terms; ù there shall be a deterioration in Starbase’s cash flow or liquidity or the amounts provided by Starbase’s working capital, together with the funds provided by the Bridge Loan from Borland, such that the funds shall no longer be sufficient to maintain Starbase’s level of operations as of the date of the Merger Agreement through at least December 15, 2002; or
ù a “triggering event” shall have occurred under the Merger Agreement. The foregoing conditions set forth in clauses (a) through (h) are for the sole benefit of Numico Borland and the Purchaser and, subject to the terms and may be asserted by Numico and the Purchaser regardless conditions of the circumstances giving rise to such condition and Merger Agreement, may be waived by Numico and Borland or the Purchaser Purchaser, in whole or in part part, at any time and from time to time, by express and specific action to that effect in their sole discretionthe reasonable discretion of Borland or the Purchaser. The failure by Numico Borland or the Purchaser at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall will be deemed an ongoing right that may be asserted at any time and from time to time. The capitalized terms used in this Section 12 shall have If the meanings set forth in Offer is terminated pursuant to the Merger Agreementforegoing provisions, all tendered shares of Starbase common stock will be promptly returned to the tendering stockholders.
Appears in 1 contract
CERTAIN CONDITIONS TO THE OFFER. The Offer is subject to the satisfaction of the Minimum Conditions. The 90% Condition requires that at least that number of Shares that would, when aggregated with the Shares owned by Purchaser and MEHC, represent at least 90% of all Shares then outstanding must have been validly tendered and not withdrawn prior to the Expiration Date. The Public Stockholder Condition requires at least that number of Shares must have been validly tendered and not withdrawn prior to the Expiration Date that represent at least a majority of the total number of all Shares outstanding on such date that are not held by MEHC, its affiliates and the directors and executive officers of HMSV. Notwithstanding any other provision of the Offer, and subject in addition to (and not in limitation of) Purchaser's rights to extend and amend the terms and conditions of the Merger AgreementOffer at any time in its sole discretion, the Purchaser shall not be obligated to accept for payment any Shares until all authorizations, consents, orders and approvals of, and declarations and filings with, and all expirations of waiting periods imposed by, any Governmental Entity which, if not obtained in connection with the consummation of the transactions contemplated by the Merger Agreement, could reasonably be expected to have a Material Adverse Effect on the Company or prevents the Company, Numico or Purchaser from consummating the transactions contemplated by the Merger Agreement (collectively, "Required Regulatory Approvals") shall have been obtained, made or satisfied, including the expiration or earlier termination of any waiting periods applicable under the HSR Act, and the Purchaser shall not be required to accept for payment payment, or, subject to any applicable rules and regulations of the SEC (SEC, including Rule 14e-1(c) promulgated under the Exchange Act) , pay for, and may delay the acceptance for payment of or or, subject to the restriction referred to above, the payment for, any Shares tendered in Shares, and may terminate the Offer and not accept for payment any tendered Shares, (subject 1) if the Minimum Conditions have not been satisfied, or (2) if, at any time before the time of acceptance of shares for payment pursuant to the terms and conditions of the Merger AgreementOffer, including Section 1.1(b) thereof), may amend, extend or terminate the Offer if, immediately prior to the expiration of the Offer (as extended in accordance with the Merger Agreement) the Minimum Condition shall not have been satisfied or any of the following events listed in paragraphs (a) -- (h) below shall occuroccur or exist:
(a) there shall have been threatened, instituted or be threatened or pending any action, litigation proceeding, application, claim or proceeding (hereinafter, an "Action") counterclaim by any Governmental Entity government or governmental authority or agency, domestic or foreign, or by any other Person: person, domestic or foreign, before any court or governmental regulatory or administrative agency, authority or tribunal, domestic or foreign, (i) challenging the acquisition by Numico MEHC or the Purchaser of Shares or the Shares, seeking to restrain or prohibit the making or consummation of the Offer or the Merger; (ii) seeking to obtain from MEHC or Purchaser any damages, fines or legal sanctions relating to the Offer or the Merger; (iii) seeking to prohibit or impose any material limitation (including any hold separate obligation) on Numico's, limit the Purchaser's ownership or operation by MEHC or Purchaser or any of their respective affiliates' ownership or operation affiliates of all or any material portion of the business or assets of HMSV or to compel MEHC or Purchaser or any of their affiliates to dispose of or hold separate all or any portion of the Company and its subsidiaries taken as a whole business or Numico and its subsidiaries taken as a wholeassets of HMSV or of Purchaser or seeking to impose any limitation on the ability of MEHC or Purchaser or any of their affiliates to conduct such business or own such assets; or (iiiiv) seeking to impose material or confirm limitations on the ability of Numico MEHC or the Purchaser or any of their affiliates effectively to acquire or hold, or to exercise full rights of ownership ofof the Shares, the Shares including including, without limitation, the right to vote the any Shares purchased acquired or owned by them on an equal basis with all other Shares MEHC or Purchaser or any of their affiliates on all matters properly presented to the shareholders HMSV's stockholders; (v) seeking to require divestiture by MEHC or Purchaser or any of their affiliates of any Shares; or (vi) which would otherwise in the sole judgment of Purchaser or MEHC, materially adversely affect HMSV or adversely affect the benefits which Purchaser or MEHC expects to derive from the successful completion of the Company; orOffer and/or the Merger;
(b) there shall be any statute, rule, regulation, legislation, interpretation, judgment, order or injunction shall be proposed, enacted, promulgated, entered, enforced enforced, issued or deemed to or become applicable to the Merger Agreement, the Offer, the Merger, the Shareholder Agreement or other similar business combination by Purchaser or any affiliate of MEHC with HMSV, or any other action shall have been taken by any government, governmental authority or agency or court or other Governmental Entity, that could reasonably be expected with respect to result a proceeding described in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iii) of paragraph (a) above; , domestic or foreign, that has, or, in MEHC's sole discretion, could be expected to result in, any of the consequences referred to in paragraph (a) above;
(c) (i) the representations and warranties any approval, permit, authorization, favorable review or consent of the Company as set forth in Section 3.1(b) of the Merger Agreement any court or governmental entity shall not have been obtained on terms satisfactory to Purchaser in its sole discretion or Purchaser is advised, or otherwise has reason to believe, that any such approval, permit, authorization, review or consent will be true and correct in all material respects as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (ii) the representations and warranties of the Company set forth in the Merger Agreement (denied or substantially delayed, or will not be given other than those set forth in Section 3.1(b) of the Merger Agreement), (x) to the extent qualified by Material Adverse Effect shall not be true and correct and (y) to the extent not qualified by Material Adverse Effect shall not be true and correct, except upon terms or conditions that this clause (y) shall be deemed satisfied so long as any failures of such representations and warranties to be true and correct, taken together, do not have a Material Adverse Effect on the Companywould, in Purchaser's sole judgment, make it impracticable to proceed with the case of each of clauses (x) and (y) as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (iii) the Company shall have breached or failed to comply in any material respect with any of its material obligations, covenants or agreements under the Merger Agreement; or (iv) any change or event shall have occurred that has, or could reasonably be expected to have, a Material Adverse Effect on the Company; orOffer;
(d) there shall have occurred or been threatened (i) any general suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq NASDAQ National Market, any other national securities exchange or in the over-the-counter market in the United States; (ii) a the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, the European Union States (whether or the United Kingdomnot mandatory); (iii) any extraordinary or material adverse change in the financial markets or major stock exchange indices in the United States or abroad or in the market price of Shares; (iv) any material change in United States currency exchange rates or any other currency exchange rates or a suspension of, or limitation on, the markets therefor; (v) any limitation (whether or not mandatory) by any Governmental Entity United States or foreign governmental authority on the extension of credit by banks or other lending financial institutions; (ivvi) a suspension of, or limitation on, the currency exchange markets or the imposition of, or material changes in, any currency or exchange control laws in the United States or abroad; (v) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States or the Netherlands which could reasonably be expected to have a Material Adverse Effect on Numico or the Company or prevent (or materially delay) the consummation of the OfferStates; or (vivii) in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or a worsening thereof; or;
(e) any change shall have occurred or been threatened (or any condition, event or development shall have occurred or been threatened involving a prospective change) in the business, properties, assets, liabilities, capitalization, stockholders' equity, condition (financial or otherwise), operations, licenses or franchises, results of operations or prospects of HMSV that, in the sole judgment of MEHC, is or may be materially adverse to HMSV or to the value of the Shares to Purchaser, MEHC or any other affiliate of MEHC or Purchaser, or MEHC shall have become aware of any facts that, in the sole judgment of MEHC, have or may have material adverse significance with respect to either the value of HMSV or the value of the Shares to Purchaser, or any other affiliate of MEHC;
(f) unless MEHC shall have consented in writing, HMSV shall have (i) if split, combined or otherwise changed, or authorized or proposed a split, combination or other change of, the holders Shares or its capitalization; (ii) issued, distributed, pledged or sold, or authorized, proposed or announced the issuance, distribution, pledge or sale of Shares which are the subject of the Shareholder Agreement shall have either (A) failed any shares of capital stock (including, without limitation, the Shares), or securities convertible into any such Shares, or any rights, warrants or options to tender in the Offer (and not withdrawn) a majority of the outstanding acquire any such Shares or convertible securities, or (B) any other securities in respect of, in lieu of, or in substitution for Shares; (iii) purchased or otherwise acquired or caused a reduction in the number of, or proposed or offered to purchase or otherwise acquire or cause a reduction in the number of, any outstanding Shares or other securities of HMSV; (iv) declared or paid any dividend or distribution on any shares of capital stock or issued, or authorized, recommended or proposed the issuance of, any other distribution in respect of the Shares, whether payable in cash, securities or other property, or altered or proposed to alter any material respectterm of any outstanding security; (v) issued, failed or announced its intention to voteissue, failed any debt securities or any rights, warrants or options entitling the holder thereof to act by consent purchase or have interfered otherwise acquire any debt securities, or incurred, or announced its intention to incur, any debt other than the ordinary course of business and consistent with its past practice; (vi) authorized, recommended, proposed or have frustrated the exercise publicly announced its intention to enter into (A) any merger, consolidation, liquidation, dissolution, business combination, acquisition of the rights conferred upon the holders assets or securities or disposition of proxies identified and set forth assets or securities other than in the Shareholder Agreementordinary course of business, (B) any material change in its capitalization, (C) any release or relinquishment of any material contract rights, or (iiD) any comparable event not in the ordinary course of business; (vii) authorized, recommended or proposed or announced its intention to authorize, recommend or propose any transaction which could adversely affect the value of the Shares; (viii) proposed, adopted or authorized any amendment to its Certificate of Incorporation or Bylaws or similar organizational documents or Purchaser or MEHC shall have learned about any such proposal or amendment which shall not have been previously disclosed; (ix) entered into any new material contracts or canceled or substantially changed the terms of any existing material contracts; or (x) agreed in writing or otherwise to take any of the representations and warranties foregoing actions;
(g) HMSV shall have (i) entered into any employment, severance or similar agreement, arrangement or plan with any of any such party set forth its employees other than in the Shareholder Agreement shall not be true in ordinary course of business; (ii) entered into or amended any material respectagreements, in each case, when made arrangements or at any time prior plans so as to the consummation of the Offer as if made at and as of such time, provide for increased or (iii) the Shareholder Agreement shall have been invalidated or terminated with respect accelerated benefits to any Shares subject thereto; or
(f) employee as a result of or in connection with the Board of Directors of the Company (or any special committee thereof) shall have withdrawn or materially modified in any manner adverse to Numico or the Purchaser its approval or recommendation of transactions contemplated by the Offer, the Merger or other business combination; or (iii) except as may be required by law, taken any action to terminate or amend any employee benefit plan (as defined in Section 3(2) of the Merger Agreement; or
(gEmployee Retirement and Income Security Act of 1974, as amended) the Company of HMSV, or Purchaser or MEHC shall have entered into or shall have become aware of any such action that was not disclosed in publicly announced its intention available filings prior to enter into, an agreement or agreement in principle with respect the date of this Offer to any Acquisition ProposalPurchase; or
(h) the Merger Agreement MEHC, Purchaser or the Shareholder Agreement another affiliate of MEHC and HMSV shall have been entered into an agreement that the Offer be terminated in accordance or amended or MEHC, Purchaser or another affiliate of MEHC shall have entered into an agreement with its termsHMSV providing for a merger or other business combination with HMSV. The foregoing conditions set forth in clauses (a) through (h) are for the sole benefit of Numico Purchaser and the Purchaser MEHC and may be asserted by Numico and the Purchaser regardless of the circumstances giving rise to such condition and or may be waived by Numico and the Purchaser MEHC or Purchaser, in whole or in part at any time and from time to time, by express and specific action time prior to that effect the expiration of the Offer in their sole discretionthe good faith judgment of MEHC or Purchaser. The failure by Numico MEHC or the Purchaser at any time to exercise any of the foregoing such rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right that which may be asserted at any time and from time to time. The capitalized terms used in this Section 12 shall have the meanings set forth in the Merger Agreement.
Appears in 1 contract
CERTAIN CONDITIONS TO THE OFFER. (a) Notwithstanding any other provision terms of the Offer, and subject to the terms and conditions of the Merger Agreement, the Purchaser shall not be obligated to accept for payment any Shares until all authorizations, consents, orders and approvals of, and declarations and filings with, and all expirations of waiting periods imposed by, any Governmental Entity which, if not obtained in connection with the consummation of the transactions contemplated by the Merger Agreement, could reasonably be expected to have a Material Adverse Effect on the Company or prevents the Company, Numico or Purchaser from consummating the transactions contemplated by the Merger Agreement (collectively, "Required Regulatory Approvals") shall have been obtained, made or satisfied, including the expiration or earlier termination of any waiting periods applicable under the HSR Act, and the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (SEC, including Rule 14e-1(c) promulgated under the Exchange Act) Act (relating to Purchaser's obligation to pay forfor or return tendered Shares after the termination or withdrawal of the Offer), and may delay the acceptance to pay for payment of or payment for, any Shares tendered in pursuant to the Offer unless:
(i) there shall have been validly tendered and (subject to the terms and conditions of the Merger Agreement, including Section 1.1(b) thereof), may amend, extend or terminate the Offer if, immediately not withdrawn prior to the expiration of the Offer, not less than 4,636,775 of the outstanding Shares or Dr. Markoll shall have tendered to Purchaser an amount of Xxxxxx (xx any) equal in number to the shortfall between the number of Shares tendered pursuant to the Offer and 4,636,775 of the outstanding Shares;
(ii) sufficient financing shall have been obtained by Purchaser, on terms reasonably satisfactory to it, to enable Purchaser to consummate the Offer, and to pay all related costs and expenses;
(iii) any waiting period (and any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as extended amended ("XXX Xxx"), applicable to the purchase of Shares pursuant to the Offer shall have expired or been terminated;
(iv) Shareholders tendering Shares pursuant to the Offer have given warranties in accordance favor of Purchaser and its affiliates stating that they have full power and authority to tender, sell, assign and transfer the Shares they are tendering, that such Shares are fully paid and that when the same are accepted for purchase by Purchaser or its designated affiliate, Purchaser or its designated affiliate will acquire good, valid and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and the same will not be subject to any adverse claim;
(v) Purchaser shall have completed its due diligence of the Company with results satisfactory to Purchaser in its sole discretion and no material adverse effect shall have occurred with respect to the Merger AgreementCompany's business or financial condition;
(vi) Purchaser shall have received a completed and executed IRS Form W-8 or IRS Form W-9, as applicable, from each Shareholder participating in the Minimum Condition Offer; and
(vii) all of the Transaction agreements have been executed and delivered by each party thereto and said agreements shall not be in full force and effect and all conditions with respect to consummation of such agreements shall have been satisfied or waived.
(b) Furthermore, notwithstanding any other term of the Offer, Purchaser (a) shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to Purchaser's obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the offer) to pay for any Shares tendered pursuant to the Offer; (b) may terminate or, with the consent of the Company, amend the Offer, if, at any time on or after the date of this Agreement and before the expiration of the Offer, any of the following shall occurcircumstances exists:
(ai) there shall be threatened or pending or decided any actionsuit, litigation action or proceeding (hereinafter, an "Action") by any Governmental Entity government agency or any other Person: person, in each case that has a reasonable likelihood of success, (i1) challenging the acquisition by Numico or the Purchaser of Shares or the Shares, seeking to restrain or prohibit the making or consummation of the Offer Offer, or seeking to obtain from the Merger; Company or Purchaser any damages that are material in relation to the Company and its subsidiaries taken as whole, (ii2) seeking to prohibit or impose any material limitation (including any hold separate obligation) on Numico's, limit the Purchaser's ownership or operation by Company or Purchaser or any of their respective affiliates' ownership or operation subsidiaries of all or any material portion of the business Business or assets the Assets, or to compel the Company or Purchaser or any of their respective subsidiaries to dispose of or hold separate any material portion of the Business or the Assets as a result of the Offer, (3) seeking to impose limitations on the ability of Purchaser to acquire or hold, or exercise full rights of ownership of, any Shares, including the right to vote the Shares purchased by it on all matters properly presented to the Shareholders, or (4) seeking to prohibit Purchaser or any of its subsidiaries from acquiring or holding or effectively controlling in any material respect the Business or the Assets, or (5) which otherwise is reasonably likely to have a material adverse effect on either of the Company and its subsidiaries taken as a whole whole, on the Business, on the Assets, on Dr. Markoll or Numico on Purchaser and its subsidiaries taken as a whole; or (iii) seeking to impose material limitations on the ability of Numico or the Purchaser effectively to acquire or hold, or to exercise full rights of ownership of, the Shares including the right to vote the Shares purchased by them on an equal basis with all other Shares on all matters properly presented to the shareholders of the Company; orx xxxxx;
(bii) any statute, rule, regulation, legislation, interpretation, judgment, order or injunction shall be threatened, proposed, sought, enacted, entered, enforced, promulgated, enteredamended or issued with respect to, enforced or deemed to applicable to, or become applicable to any consent or approval withheld with respect to, (1) Purchaser, the Merger AgreementCompany, or any of their respective subsidiaries or Dr. Markoll or (2) the Offer, the Merger, the Shareholder Agreement or any other action shall have been taken transaction coxxxxxxxxxx by the transaction documents, by any court governmental agency that is reasonably likely to result, directly or other Governmental Entityindirectly, that could reasonably be expected to result in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses clause (i) through (iii) of paragraph (ab)(i) above; or;
(c) (i) the representations and warranties of the Company as set forth in Section 3.1(b) of the Merger Agreement shall not be true and correct in all material respects as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (ii) the representations and warranties of the Company set forth in the Merger Agreement (other than those set forth in Section 3.1(b) of the Merger Agreement), (x) to the extent qualified by Material Adverse Effect shall not be true and correct and (y) to the extent not qualified by Material Adverse Effect shall not be true and correct, except that this clause (y) shall be deemed satisfied so long as any failures of such representations and warranties to be true and correct, taken together, do not have a Material Adverse Effect on the Company, in the case of each of clauses (x) and (y) as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (iii) the Company or Dr. Markoll shall have breached failed to perform in any material xxxxxxx xxx obligation or failed to comply in any material respect with any of its material obligations, covenants agreement or agreements covenant to be performed or complied with by them under the Merger Agreement; or (iv) any change or event shall have occurred that has, or could reasonably be expected to have, a Material Adverse Effect on the Company; or
(d) there shall have occurred (i) any general suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market; (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, the European Union or the United Kingdom; (iii) any material limitation (whether or not mandatory) by any Governmental Entity on the extension of credit by banks or other lending institutions; (iv) a suspension of, or limitation on, the currency exchange markets or the imposition of, or material changes in, any currency or exchange control laws in the United States or abroad; (v) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States or the Netherlands which could reasonably be expected to have a Material Adverse Effect on Numico or the Company or prevent (or materially delay) the consummation of the Offer; or (vi) in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or a worsening thereof; or
(i) if the holders of Shares which are the subject of the Shareholder Agreement shall have either (A) failed to tender in the Offer (and not withdrawn) a majority of the outstanding Shares or (B) in any material respect, failed to vote, failed to act by consent or have interfered with or have frustrated the exercise of the rights conferred upon the holders of proxies identified and set forth in the Shareholder Agreement, or (ii) any of the representations and warranties of any such party set forth in the Shareholder Agreement shall not be true in any material respect, in each case, when made or at any time prior to the consummation of the Offer as if made at and as of such time, or (iii) the Shareholder Agreement shall have been invalidated or terminated with respect to any Shares subject thereto; or
(f) the Board of Directors of the Company (or any special committee thereof) shall have withdrawn or materially modified in any manner adverse to Numico or the Purchaser its approval or recommendation of the Offer, the Merger or the Merger Agreement; or
(g) the Company shall have entered into or shall have publicly announced its intention to enter into, an agreement or agreement in principle with respect to any Acquisition Proposal; or
(h) the Merger Agreement or the Shareholder Agreement shall have been terminated in accordance with its terms. The foregoing conditions set forth in clauses (a) through (h) are for the sole benefit of Numico and the Purchaser and may be asserted by Numico and the Purchaser regardless of the circumstances giving rise to any such condition and conditions (including any action or inaction by Purchaser) or may be waived by Numico and the Purchaser in whole or in part part, subject to applicable law, at any time and from time to time, by express and specific action to that effect time in their its sole discretion. The failure by Numico or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right that and may be asserted at any time and from time to time. The capitalized terms used in this Section 12 Any determination by Purchaser with respect to the foregoing conditions shall have the meanings set forth in the Merger Agreementbe final and binding. THE OFFER IS CONDITIONED UPON THE SATISFACTION, OR WAIVER BY PURCHASER IN ITS SOLE DISCRETION, SUBJECT TO APPLICABLE LAW, OF ALL THE CONDITIONS DESCRIBED ABOVE.
Appears in 1 contract
Samples: Offer to Purchase (Duravest Inc)
CERTAIN CONDITIONS TO THE OFFER. Notwithstanding any other provision The following is a summary of all of the conditions to the Offer, and subject the Offer is expressly conditioned on the satisfaction of these conditions. The following summary does not purport to be a complete description of the conditions to the terms Offer contained in the Merger Agreement and conditions of is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as an exhibit to the Tender Offer Statement on Schedule TO that has been filed with the Securities and Exchange Commission by the Purchaser shall not be obligated to accept for payment any Shares until all authorizations, consents, orders and approvals of, and declarations and filings with, and all expirations of waiting periods imposed by, any Governmental Entity which, if not obtained BEI in connection with the consummation of the transactions contemplated Offer, and is incorporated in this Offer to Purchase by the Merger Agreement, could reasonably be expected to have a Material Adverse Effect on the Company or prevents the Company, Numico or Purchaser from consummating the transactions contemplated by the reference. The Merger Agreement (collectivelymay be examined, "Required Regulatory Approvals") shall have been and copies obtained, made or satisfied, including by following the expiration or earlier termination procedures described in Section 10 (Certain Information Concerning OpticNet) of any waiting periods applicable under the HSR Act, and this Offer to Purchase. The Merger Agreement provides that the Purchaser shall is not be required to accept for payment orpayment, or (subject to any applicable rules and regulations rule or regulation of the SEC (including Rule 14e-1(c) promulgated under the Securities and Exchange ActCommission) pay for, and may delay the acceptance for payment of, or (subject to any applicable rule or regulation of or the Securities and Exchange Commission) the payment for, any Shares tendered in the Offer shares of OpticNet common stock, and (subject to the terms and conditions of the Merger Agreement, including Section 1.1(b) thereof), may amend, extend or terminate the Offer if, immediately prior to the expiration on any scheduled Expiration Date of the Offer and not accept for payment any tendered shares of OpticNet common stock, if (as extended in accordance with the Merger Agreementi) the Minimum Condition has not been satisfied by midnight, New York City time, on the Expiration Date of the Offer or (ii) any of the following conditions shall not have been satisfied satisfied: - any waiting period under any applicable antitrust or any of the following shall occur:
(a) there shall be threatened competition law or pending any action, litigation or proceeding (hereinafter, an "Action") by any Governmental Entity regulation or other Person: (i) challenging the acquisition by Numico legal requirement shall have expired or the Purchaser of Shares been terminated, and any consent required under any applicable antitrust or seeking to restrain competition law or prohibit the consummation of the Offer regulation or the Merger; (ii) seeking to prohibit or impose any material limitation (including any hold separate obligation) on Numico's, the Purchaser's or any of their respective affiliates' ownership or operation of all or any material portion of the business or assets of the Company and its subsidiaries taken as a whole or Numico and its subsidiaries taken as a whole; or (iii) seeking to impose material limitations on the ability of Numico or the Purchaser effectively to acquire or hold, or to exercise full rights of ownership of, the Shares including the right to vote the Shares purchased by them on an equal basis with all other Shares on all matters properly presented to the shareholders of the Company; or
(b) any statute, rule, regulation, order or injunction shall be enacted, promulgated, entered, enforced or deemed to or become applicable to the Merger Agreement, the Offer, the Merger, the Shareholder Agreement or any other action legal requirement shall have been taken by any court or other Governmental Entity, that could reasonably be expected to result in any obtained; - each of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iii) of paragraph (a) above; or
(c) (i) the representations and warranties of the Company as set forth OpticNet contained in Section 3.1(b) of the Merger Agreement shall not be true and correct have been accurate in all material respects as of the date of the Merger Agreement and (except to the extent such representations and warranties speak that any representation or warranty that, by its express terms, speaks only as of an earlier date) as of the consummation of the Offer as though made on and date need only have been accurate as of such earlier date); (ii) except that, for purposes of determining the representations and warranties of the Company set forth in the Merger Agreement (other than those set forth in Section 3.1(b) of the Merger Agreement), (x) to the extent qualified by Material Adverse Effect shall not be true and correct and (y) to the extent not qualified by Material Adverse Effect shall not be true and correct, except that this clause (y) shall be deemed satisfied so long as any failures accuracy of such representations and warranties to be true and correct, taken together, do not have a Material Adverse Effect on the Company, in the case of each of clauses (x) and (y) as of the date of the Merger Agreement and (except to the extent or any applicable earlier date), all materiality qualifications contained in such representations and warranties speak as shall be disregarded; - each of an earlier date) the representations and warranties of OpticNet contained in the Merger Agreement shall be accurate in all respects as of the consummation of the Offer Expiration Date as though if made on and as of the Offer Expiration Date (except that any representation or warranty that, by its express terms, speaks only as of an earlier date need only have been accurate as of such earlier date); except that the inaccuracies in such representations and warranties shall be disregarded for purposes of this condition if all such inaccuracies and the circumstances giving rise thereto, considered collectively, have not had and could not reasonably be expected to have or constitute a material adverse effect on the business, operations, 39 capitalization, assets, liabilities or prospects of OpticNet (together with the previous condition, the "Accuracy Conditions"); - each covenant or obligation that OpticNet is required to comply with or to perform at or prior to the Acceptance Date has been complied with and performed in all material respects (the "Covenant Condition"); - all material consents required to be obtained in connection with the Offer, the Merger and each of the other transactions contemplated by the Merger Agreement shall have been obtained and shall be in full force and effect (the "Consent Condition"); - BEI and OpticNet have received (i) a certificate executed by the Chief Executive Officer and Chief Financial Officer of OpticNet confirming that the Accuracy Conditions, the Covenant Condition, the Consent Condition, the Legality Condition (as defined below) and the Legal Proceeding Condition (as defined below) have been duly satisfied, which certificate shall be in full force and effect and (ii) the written resignations of all officers and directors of OpticNet, effective as of the Acceptance Date; - no temporary restraining order, preliminary or permanent injunction or other order preventing the purchase of or payment for shares of OpticNet common stock pursuant to the Offer, or preventing completion of the Merger or any of the other transactions contemplated by the Merger Agreement, shall have been issued by any court of competent jurisdiction and remain in effect, and there is not any legal requirement enacted or deemed applicable to the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement that makes the purchase of or payment for shares of OpticNet common stock pursuant to the Offer, or the completion of the Merger or any of the other transactions contemplated by the Merger Agreement, illegal (the "Legality Condition"); - there shall not be pending or overtly threatened any legal proceeding by or before any governmental body: (i) challenging or seeking to restrain or prohibit the purchase of or payment for shares of OpticNet common stock pursuant to the Offer, or the completion of the Merger or any of the other transactions contemplated by the Merger Agreement; (ii) relating to the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement and seeking to obtain from BEI or OpticNet any damages or other relief that may be material to BEI or OpticNet; (iii) the Company shall have breached seeking to prohibit or failed to comply limit in any material respect BEI's ability to vote, receive dividends with any respect to or otherwise exercise ownership rights with respect to the stock of its material obligations, covenants or agreements under the Merger AgreementOpticNet; or (iv) any change that could materially and adversely affect the right of BEI or event shall have occurred that has, OpticNet to own the assets or could reasonably be expected to have, a Material Adverse Effect on operate the Companybusiness of OpticNet (the "Legal Proceeding Condition"); or
(d) and - there shall not have occurred occurred: (i) any general suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market; (ii) a declaration by a governmental body of a banking moratorium in the United States or any suspension of payments in respect of banks in the United States, the European Union which declaration or the United Kingdomsuspension is continuing; or (iii) any material limitation (whether or not mandatory) by any Governmental Entity on the extension of credit by banks or other lending institutions; (ivii) a suspension ofwar, armed hostilities, an act of terrorism or limitation on, the currency exchange markets any other international or the imposition of, or material changes in, any currency or exchange control laws in the United States or abroad; (v) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States States, which is (or whose effects are) continuing, which in any case in the good faith judgment of BEI would make it inadvisable to proceed with the Offer or the Netherlands which could reasonably be expected to have a Material Adverse Effect on Numico or the Company or prevent (or materially delay) the consummation of the Offer; or (vi) in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or a worsening thereof; or
(i) if the holders of Shares which are the subject of the Shareholder Agreement shall have either (A) failed to tender in the Offer (and not withdrawn) a majority of the outstanding Shares or (B) in any material respect, failed to vote, failed to act by consent or have interfered with or have frustrated the exercise of the rights conferred upon the holders of proxies identified and set forth in the Shareholder Agreement, or (ii) any of the representations and warranties of any such party set forth in the Shareholder Agreement shall not be true in any material respect, in each case, when made or at any time prior to the consummation of the Offer as if made at and as of such time, or (iii) the Shareholder Agreement shall have been invalidated or terminated with respect to any Shares subject thereto; or
(f) the Board of Directors of the Company (or any special committee thereof) shall have withdrawn or materially modified in any manner adverse to Numico or the Purchaser its approval or recommendation of the Offer, the Merger or the Merger Agreement; or
(g) the Company shall have entered into or shall have publicly announced its intention to enter into, an agreement or agreement in principle with respect to any Acquisition Proposal; or
(h) the Merger Agreement or the Shareholder Agreement shall have been terminated in accordance with its termsMerger. The foregoing conditions set forth in clauses (a) through (h) are for the sole benefit of Numico BEI and the Purchaser and, subject to the terms and may be asserted by Numico and the Purchaser regardless conditions of the circumstances giving rise to such condition and Merger Agreement, may be waived by Numico and BEI or the Purchaser Purchaser, in whole or in part part, at any time and from time to time, by express in the sole discretion of BEI and specific action to that effect in their sole discretionthe Purchaser. The failure by Numico BEI or the Purchaser at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall will be deemed an ongoing right that may be asserted at any time and from time to time. The capitalized terms used in this Section 12 shall have Offer is expressly subject to the meanings set forth in satisfaction of each of the Merger Agreement.foregoing conditions. If the Offer is terminated pursuant to the foregoing provisions, all tendered shares of OpticNet common stock will be promptly returned to the tendering stockholders. 40
Appears in 1 contract
CERTAIN CONDITIONS TO THE OFFER. Notwithstanding any other provision of the Offer, and subject to the terms and conditions of the Merger Agreement, the Purchaser shall not be obligated to accept for payment any of the Shares until all authorizations, consents, orders and approvals of, and declarations and filings with, and all expirations of waiting periods imposed by, any Governmental Entity which, if not obtained in connection with the consummation of the transactions contemplated by the Merger Agreement, could reasonably be expected to have a Material Adverse Effect on the Company or prevents the Company, Numico or Purchaser from consummating the transactions contemplated by the Merger Agreement (collectively, "Required Regulatory Approvals") shall have been obtained, made or satisfied, including the expiration or earlier termination of any waiting periods applicable under the HSR Act, and the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act) pay for, and may delay the acceptance for payment of or payment for, any Shares tendered in the Offer and if (subject to the terms and conditions of the Merger Agreement, including Section 1.1(bi) thereof), may amend, extend or terminate the Offer if, immediately prior to the expiration of the Offer (as extended in accordance with the Merger Agreement) the Minimum Condition shall not have been satisfied or (ii) prior to the time of acceptance of any Shares pursuant to the Offer any of the following shall occur:
(a) there shall be threatened or pending any action, litigation or proceeding (hereinafter, an "Action") by any Governmental Entity or other Person: governmental entity (i) challenging the acquisition by Numico Technical Olympic or the Purchaser of Shares or seeking to restrain or prohibit the consummation of the Offer or the Merger; , (ii) seeking to prohibit or impose any material limitation (including any hold separate obligation) on NumicoTechnical Olympic's, the Purchaser's or any of their respective affiliates' ownership or operation of all or any material portion of the business or assets of the Company and its subsidiaries Subsidiaries taken as a whole or Numico Technical Olympic and its subsidiaries Subsidiaries taken as a whole; , or (iii) seeking to impose material limitations on the ability of Numico Technical Olympic or the Purchaser effectively to acquire or hold, or to exercise full rights of ownership of, the Shares Shares, including the right to vote the Shares purchased by them on an equal basis with all other Shares on all matters properly presented to the shareholders of the Company; or;
(b) any statute, rule, regulation, order or injunction shall be enacted, promulgated, entered, enforced or deemed to or become applicable to the Merger Agreement, the Offer, Offer or the Merger, the Shareholder Agreement or a Required Regulatory Approval shall not have been obtained or shall not be in full force and effect or any other action shall have been taken taken, by any court or other Governmental Entitygovernmental entity, that that, in such case, could reasonably be expected to result in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iii) of paragraph (a) above; or;
(c) (i) the representations and warranties of the Company as set forth in Section 3.1(b) of the Merger Agreement shall not be true and correct in all material respects as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (ii) the representations and warranties of the Company set forth in the Merger Agreement (other than those set forth in Section 3.1(b) of the Merger Agreement), (x) to the extent qualified by Material Adverse Effect shall not be true and correct and (y) to the extent not qualified by Material Adverse Effect shall not be true and correct, except that this clause (y) shall be deemed satisfied so long as any failures of such representations and warranties to be true and correct, taken together, do not have a Material Adverse Effect on the Company, in the case of each of clauses (x) and (y) as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (iii) the Company shall have breached or failed to comply in any material respect with any of its material obligations, covenants or agreements under the Merger Agreement; or (iv) any change or event shall have occurred that has, or could reasonably be expected to have, a Material Adverse Effect on the Company; or
(d) there shall have occurred (i) any general suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market; (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, the European Union or the United Kingdom; (iii) any material limitation (whether or not mandatory) by any Governmental Entity on the extension of credit by banks or other lending institutions; (iv) a suspension of, or limitation on, the currency exchange markets or the imposition of, or material changes in, any currency or exchange control laws in the United States or abroad; (v) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States or the Netherlands which could reasonably be expected to have a Material Adverse Effect on Numico or the Company or prevent (or materially delay) the consummation of the Offer; or (vi) in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or a worsening thereof; or
(i) if the holders of Shares which are the subject of the Shareholder Agreement shall have either (A) failed to tender in the Offer (and not withdrawn) a majority of the outstanding Shares or (B) in any material respect, failed to vote, failed to act by consent or have interfered with or have frustrated the exercise of the rights conferred upon the holders of proxies identified and set forth in the Shareholder Agreement, or (ii) any of the representations and warranties of any such party set forth the Company contained in the Shareholder Merger Agreement shall is not be true complete and accurate, individually or in any material respect, in each case, when made or at any time prior to the consummation of aggregate with the Offer as if made at other representations and as of such time, or (iii) the Shareholder Agreement shall have been invalidated or terminated with respect to any Shares subject thereto; or
(f) the Board of Directors warranties of the Company (or any special committee thereof) shall have withdrawn or materially modified in any manner adverse to Numico or the Purchaser its approval or recommendation of the Offer, the Merger or the Merger Agreement; or
(g) the Company shall have entered into or shall have publicly announced its intention to enter into, an agreement or agreement in principle with respect to any Acquisition Proposal; or
(h) the Merger Agreement or the Shareholder Agreement shall have been terminated in accordance with its terms. The conditions set forth in clauses (a) through (h) are for the sole benefit of Numico and the Purchaser and may be asserted by Numico and the Purchaser regardless of the circumstances giving rise to such condition and may be waived by Numico and the Purchaser in whole or in part at any time and from time to time, by express and specific action to that effect in their sole discretion. The failure by Numico or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The capitalized terms used in this Section 12 shall have the meanings set forth contained in the Merger Agreement., without regard to any qualification or limitation contained in or related to any such representation or warranty relating to materiality or to Material Adverse Effect, in a
Appears in 1 contract
CERTAIN CONDITIONS TO THE OFFER. Notwithstanding any other provision of In addition to (and not in limitation of) the Offer, Company's rights to extend and subject amend the Offer pursuant to the terms and conditions provisions of the Merger Agreement, the Purchaser shall Company is not be obligated to accept for payment any Shares until all authorizations, consents, orders and approvals of, and declarations and filings with, and all expirations of waiting periods imposed by, any Governmental Entity which, if not obtained in connection with the consummation of the transactions contemplated by the Merger Agreement, could reasonably be expected to have a Material Adverse Effect on the Company or prevents the Company, Numico or Purchaser from consummating the transactions contemplated by the Merger Agreement (collectively, "Required Regulatory Approvals") shall have been obtained, made or satisfied, including the expiration or earlier termination of any waiting periods applicable under the HSR Act, and the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (SEC, including Rule 14e-1(c) promulgated under the Exchange Act) Act (relating to the Company's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), to pay for, and may delay the acceptance for payment of or or, subject to the restriction referred to above, the payment for, any Shares tendered in the Offer Shares, and (subject to the terms and conditions of the Merger Agreement, including Section 1.1(b) thereof), may amend, extend or terminate the Offer if, immediately :
(i) any applicable waiting period under the HSR Act has not expired or terminated prior to the expiration of the Offer Offer;
(as extended in accordance with the Merger Agreementii) the Minimum Condition shall has not been satisfied;
(iii) the closing of the Stock Purchase has not occurred other than due to any breach of the Merger Agreement by Buyer or Merger Subsidiary;
(iv) the Company has not received the proceeds of the debt portion of the Financing or otherwise obtained funds sufficient to finance the Transactions unless such proceeds were not received due to (x) the failure of the lenders in the Debt Financing and Buyer or Merger Subsidiary to agree on definitive documentation for such financing or (y) the failure of Buyer and/or Merger Subsidiary to receive the equity portion of its Financing; or as a result of the existence of any of the following conditions which conditions will not have been satisfied or waived at any time on or after the date of the following shall occurMerger Agreement and on or before the Expiration Date or any extension thereof:
(av) there shall be threatened is instituted and pending by any governmental entity (or pending the staff of any action, litigation HSR Authority recommends the commencement of) any action or proceeding which (hereinafterA) seeks to prohibit, an "Action"or impose any material limitations on, Buyer's or Merger Subsidiary's ownership or operation of all or a material portion of the businesses or assets of the Company and its subsidiaries, taken as a whole, or of Buyer or its subsidiaries, (B) by any Governmental Entity seeks to impose limitations on the ability of the Company, or other Person: (i) challenging renders the acquisition by Numico Company unable, to accept for payment, pay for or purchase some or all of the Purchaser of Shares pursuant to the Offer and the Merger or seeking to restrain or prohibit the consummation of the Offer or the Merger; , (iiC) seeking challenges or seeks to prohibit make illegal, to delay materially or impose any material limitation (including any hold separate obligation) on Numico'sto restrain or prohibit, the Purchaser's making of the Offer, the consummation of the Merger or the other Transactions, or seeks to restrain or limit the ability of the Company, or renders the Company unable, to accept for payment, pay for or purchase some or all of the Shares, to consummate the merger or the other Transactions, or seeks material damages relating to any of their respective affiliates' ownership or operation of all or any material portion of the business or assets of the Company and its subsidiaries taken as a whole or Numico and its subsidiaries taken as a whole; Transactions, or (iiiD) seeking to impose material imposes limitations on the ability of Numico Merger Subsidiary or the Purchaser Buyer or its affiliates effectively to acquire or hold, or to exercise full rights of ownership ofof the Shares, the Shares including without limitations, the right to vote the Shares purchased by them on an equal basis with all other Shares it on all matters properly presented to the shareholders of the Company; or's stockholders;
(bvi) any statute, rule, regulation, order action taken or injunction shall be enacted, promulgated, any statute or rule entered, enforced enforced, issued against or deemed to or become applicable to the Merger Agreement, the Offer, the Merger, Merger or the Shareholder Agreement or any other action shall have been taken Transactions by any court or other Governmental Entity, governmental entity is in effect that could reasonably be expected to result results in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (iA) through (iiiD) of paragraph (av) above; or;
(cvii) (i) the representations and warranties of the Company as set forth in Section 3.1(b) of the Merger Agreement shall not be true and correct has been terminated in all material respects as of the date of the Merger Agreement and accordance with its terms;
(except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (iiviii) the representations and warranties of commitment for the Company set forth Debt Financing is no longer in the Merger Agreement effect due to (other than those set forth in Section 3.1(b) of the Merger Agreement), (x) to the extent qualified by Material Adverse Effect shall not be true and correct and (y) to the extent not qualified by Material Adverse Effect shall not be true and correct, except that this clause (y) shall be deemed satisfied so long as any failures of such representations and warranties to be true and correct, taken together, do not have a Material Adverse Effect on the Company, in the case of each of clauses (x) and (y) as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (iii) the Company shall have breached or failed to comply in any material respect with any of its material obligations, covenants or agreements under the Merger Agreement; or (iv) any change or event shall have occurred that has, or could reasonably be expected to have, a Material Adverse Effect on the Company; or
(d) there shall have occurred (iA) any general suspension of trading inof, or limitation on prices for, trading in securities on the New York Stock Exchange, the American Stock Exchange any national securities exchange or the Nasdaq National Market; over-the-counter market for a period in excess of 24 hours (iiexcluding suspensions or limitations resulting solely from physical damage or interference with such exchanges not related to market conditions), (B) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States (whether or not mandatory), (C) a commencement of a war, armed hostilities 39 42 or other international or national calamity directly or indirectly involving the United States, the European Union or the United Kingdom; (iiiD) any material limitation (whether or not mandatory) by any Governmental Entity United States governmental entity on the extension of credit generally by banks or other lending financial institutions; , (ivE) a suspension ofchange in general financial, bank or limitation on, capital market conditions which materially and adversely affects the currency exchange markets or the imposition of, or material changes in, any currency or exchange control laws ability of financial institutions in the United States to extend credit or abroad; syndicate loans, (vF) a commencement decline of a war or armed hostilities or other national or international calamity directly or indirectly involving at least 20% in either the United States Dow Jonex Xxxrage of Industrial Stocks or the Netherlands which could reasonably be expected to have a Material Adverse Effect Standard & Poor's 500 Index from the close of business on Numico or the Company or prevent (or materially delay) the consummation date of the Offer; Merger Agreement, or (viG) in the case a material acceleration or worsening of any of the foregoing existing at foregoing;
(ix) since the time of the commencement of the OfferBalance Sheet Date there has occurred any material adverse change or any event or development that has resulted in or is reasonably likely to result in, a material acceleration adverse change in the business, properties, assets, condition (financial), results of operations, liabilities or operations of the Company and its subsidiaries, taken as a worsening thereof; orwhole;
(ix) if the holders Company's Board of Shares which are the subject of the Shareholder Agreement shall have either Directors (or any committee thereof) has (A) failed to tender in the Offer (and not withdrawn) a majority of the outstanding Shares or (B) in any material respect, failed to vote, failed to act by consent or have interfered with or have frustrated the exercise of the rights conferred upon the holders of proxies identified and set forth in the Shareholder Agreement, or (ii) any of the representations and warranties of any such party set forth modified or proposed publicly to withdraw or modify or changed in the Shareholder Agreement shall not be true in any material respect, in each case, when made or at any time prior to the consummation of the Offer as if made at and as of such time, or (iii) the Shareholder Agreement shall have been invalidated or terminated with respect to any Shares subject thereto; or
(f) the Board of Directors of the Company (or any special committee thereof) shall have withdrawn or materially modified in any a manner adverse to Numico Buyer or the Purchaser Merger Subsidiary its approval or recommendation of the Offer, the Merger Agreement, the Merger or the Merger Agreement; or
other Transactions, (gB) taken a position inconsistent with its recommendation of the Company shall have entered into or shall have publicly announced its intention to enter intoOffer, an agreement or agreement in principle with respect to any Acquisition Proposal; or
(h) the Merger Agreement or the Shareholder Agreement shall have been terminated Merger, (C) approved or recommended or proposed publicly to approve or recommend any Takeover Proposal, (D) taken any action in accordance connection with its terms. The conditions set forth Takeover Proposals prohibited by the Merger Agreement, (E) caused or authorized the Company to enter into any letter of intent, agreement in clauses principle, acquisition agreement or other similar agreement related to any Takeover Proposal, or (aF) through resolved or publicly disclosed an intention to do any of the foregoing; or
(hxi) are Buyer and the Company agree that the Company terminate the Offer or postpone the acceptance for payment of or payment for Shares thereunder; which in the sole benefit judgment of Numico Buyer or Merger Subsidiary, in any such case, and the Purchaser and may be asserted by Numico and the Purchaser regardless of the circumstances giving rise to such condition and may be waived by Numico and the Purchaser in whole or in part at any time and from time to time, by express and specific action to that effect in their sole discretion. The failure by Numico or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The capitalized terms used in this Section 12 shall have the meanings conditions set forth in (i) through (xi) above, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. The parties acknowledge that the foregoing conditions are for the sole benefit of the Buyer and Merger AgreementSubsidiary and that the Company will not assert failure of, or waive, any such condition without the prior written consent of Buyer and that if Buyer elects to waive any such condition to the Offer, the Company will cooperate and comply with such election.
Appears in 1 contract
CERTAIN CONDITIONS TO THE OFFER. Notwithstanding any other provision of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend and amend the Offer at any time in its sole discretion in accordance with and, otherwise subject to to, the terms and conditions of the Merger Agreement, the Purchaser shall not be obligated to accept for payment any Shares until all authorizations, consents, orders and approvals of, and declarations and filings with, and all expirations of waiting periods imposed by, any Governmental Entity which, if not obtained in connection with the consummation of the transactions contemplated by the Merger Agreement, could reasonably be expected to have a Material Adverse Effect on the Company or prevents the Company, Numico or Purchaser from consummating the transactions contemplated by the Merger Agreement (collectively, "Required Regulatory Approvals") shall have been obtained, made or satisfied, including the expiration or earlier termination of any waiting periods applicable under the HSR Act, and the Purchaser shall not be required to accept for payment payment, or, subject to any applicable rules and regulations of the SEC (SEC, including Rule 14e-1(c) promulgated under the Exchange Act) , pay for, and may delay the acceptance for payment of or or, subject to the restriction referred to above, the payment for, any Shares tendered in Shares, and may terminate the Offer and (subject to not accept for payment any tendered Shares, if, at any time on or after the terms and conditions date of the Merger Agreement, including Section 1.1(b) thereof), may amend, extend or terminate and before the Offer if, immediately prior time of acceptance of shares for payment pursuant to the expiration of the Offer (as extended in accordance with the Merger Agreement) the Minimum Condition shall not have been satisfied or Offer, any of the following events shall occur:
(a) there shall be threatened or pending any actionsuit, litigation action or proceeding (hereinafter, an "Action") by any Governmental Entity or other Person: governmental entity (i) challenging the acquisition by Numico or the Purchaser of Shares or seeking to restrain or prohibit the consummation of the Offer or the Merger; (ii) seeking to prohibit or impose any material limitation (including any hold separate obligation) limitations on Numico's, the Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates' ownership or operation ) of all or a material portion of its or the Company's businesses or assets, or to compel Purchaser or its respective subsidiaries and affiliates to dispose of or hold separate any material portion of the business businesses or assets of the Company or Purchaser and their respective subsidiaries or affiliates, in each case taken as a whole, (ii) challenging the acquisition by Purchaser of any Shares under the Offer, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by this Agreement, or seeking to obtain from the Company or Purchaser any damages that are material in relation to the Company and its subsidiaries taken as a whole or Numico and its subsidiaries taken as a whole; or , (iii) seeking to impose material limitations on the ability of Numico Purchaser, or rendering Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, (iv) seeking to impose material limitations on the ability of Purchaser effectively to acquire or hold, or to exercise full rights of ownership ofof the Shares, the Shares including including, without limitation, the right to vote the Shares purchased by them on an equal basis with all other Shares it on all matters properly presented to the shareholders Company's stockholders, or (v) which otherwise is reasonably likely to have a material adverse affect on the consolidated financial condition, businesses or results of operations of the Company; orCompany and its subsidiaries, taken as a whole;
(b) there shall be any statute, rule, regulation, judgment, order or injunction shall be enacted, promulgated, entered, enforced enforced, promulgated or deemed to or become applicable to the Merger Agreement, the Offer, Offer or the Merger, other than the Shareholder Agreement application to the Offer or any other action shall have been taken by any court or other Governmental Entitythe Merger of applicable waiting periods under the HSR Act, that could is reasonably be expected likely to result result, directly or indirectly, in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iiiv) of paragraph (a) above; or;
(c) (i) the representations and warranties of the Company as set forth in Section 3.1(b) of the Merger Agreement shall not be true and correct in all material respects as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (ii) the representations and warranties of the Company set forth in the Merger Agreement (other than those set forth in Section 3.1(b) of the Merger Agreement), (x) to the extent qualified by Material Adverse Effect shall not be true and correct and (y) to the extent not qualified by Material Adverse Effect shall not be true and correct, except that this clause (y) shall be deemed satisfied so long as any failures of such representations and warranties to be true and correct, taken together, do not have a Material Adverse Effect on the Company, in the case of each of clauses (x) and (y) as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (iii) the Company shall have breached or failed to comply in any material respect with any of its material obligations, covenants or agreements under the Merger Agreement; or (iv) any change or event shall have occurred that has, or could reasonably be expected to have, a Material Adverse Effect on the Company; or
(d) there shall have occurred (i) any general suspension of trading in, or limitation on prices for, securities on in the New York Stock ExchangeNasdaq, the American Stock Exchange for a period in excess of three hours (excluding suspensions or the Nasdaq National Market; limitations resulting solely from physical damage or interference with such exchanges not related to market conditions), (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates (whether or not mandatory), the European Union or the United Kingdom; (iii) a commencement of a war, armed hostilities or other international or national calamity directly or indirectly involving the United States, (iv) any material limitation (whether or not mandatory) by any Governmental Entity United States or foreign governmental authority on the extension of credit by banks or other lending financial institutions; , (ivv) a suspension of, change in general financial bank or limitation on, capital market conditions which materially or adversely affects the currency exchange markets or the imposition of, or material changes in, any currency or exchange control laws ability of financial institutions in the United States to extend credit or abroad; (v) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States or the Netherlands which could reasonably be expected to have a Material Adverse Effect on Numico or the Company or prevent (or materially delay) the consummation of the Offer; syndicate loans, or (vi) in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or a worsening thereof; or;
(id) if the holders of Shares which are the subject of the Shareholder Agreement there shall have either occurred any material adverse change (A) failed or any development that, insofar as reasonably can be foreseen, is reasonably likely to tender in the Offer (and not withdrawn) a majority of the outstanding Shares or (B) result in any material respect, failed to vote, failed to act by consent or have interfered with or have frustrated the exercise of the rights conferred upon the holders of proxies identified and set forth adverse change) in the Shareholder Agreement, or (ii) any of the representations and warranties of any such party set forth in the Shareholder Agreement shall not be true in any material respect, in each case, when made or at any time prior to the consummation of the Offer as if made at and as of such time, or (iii) the Shareholder Agreement shall have been invalidated or terminated with respect to any Shares subject thereto; or
(f) the Board of Directors of the Company (or any special committee thereof) shall have withdrawn or materially modified in any manner adverse to Numico or the Purchaser its approval or recommendation of the Offer, the Merger or the Merger Agreement; or
(g) the Company shall have entered into or shall have publicly announced its intention to enter into, an agreement or agreement in principle with respect to any Acquisition Proposal; or
(h) the Merger Agreement or the Shareholder Agreement shall have been terminated in accordance with its terms. The conditions set forth in clauses (a) through (h) are for the sole benefit of Numico and the Purchaser and may be asserted by Numico and the Purchaser regardless of the circumstances giving rise to such condition and may be waived by Numico and the Purchaser in whole or in part at any time and from time to time, by express and specific action to that effect in their sole discretion. The failure by Numico or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The capitalized terms used in this Section 12 shall have the meanings set forth in the Merger Agreement.the
Appears in 1 contract
Samples: Offer to Purchase (Fortress Brookdale Acquisition LLC)
CERTAIN CONDITIONS TO THE OFFER. Notwithstanding any other provision of the Offer, and subject to the terms and conditions of the Merger Agreement, the Purchaser shall not be obligated to accept for payment any Shares until all authorizations, consents, orders and approvals of, and declarations and filings with, and all expirations of waiting periods imposed by, any Governmental Entity which, if not obtained in connection with the consummation of the transactions contemplated by the Merger Agreement, could is reasonably be expected likely to have a Material Adverse Effect on the Company or prevents the Company, Numico or Purchaser from consummating the transactions contemplated by the Merger Agreement (collectively, "Required Regulatory Approvals") shall have been obtained, made or satisfied, including the expiration or earlier termination of any waiting periods applicable under the HSR Act, and the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act) pay for, and may delay the acceptance for payment of or payment for, any Shares tendered in the Offer and (subject to the terms and conditions of the Merger Agreement, including Section 1.1(b) thereof), may amend, extend or terminate the Offer if, (i) immediately prior to the expiration of the Offer (as extended in accordance with the Merger Agreement) the Minimum Condition shall not have been satisfied or (ii) prior to the time of acceptance of any Shares pursuant to the Offer, any of the following shall occur:
(a) there shall be threatened or pending any action, litigation or proceeding (hereinafter, an "Action") by any Governmental Entity or other PersonEntity: (i) challenging the acquisition by Numico or the Purchaser of Shares or seeking to restrain or prohibit the consummation of the Offer or the Merger; , (ii) seeking to prohibit or impose any material limitation (including any hold separate obligation) on Numico's, the Purchaser's or any of their respective affiliates' ownership or operation of all or any material portion of the business or assets of the Company and its subsidiaries taken as a whole or Numico and its subsidiaries taken as a whole; whole that, in each case referred to in this clause (ii), individually or in the aggregate, is reasonably likely to have Material Adverse Effect on the Company or Numico, or (iii) seeking to impose material limitations on the ability of Numico or the Purchaser effectively to acquire or hold, or to exercise full rights of ownership of, the Shares including the right to vote the Shares purchased by them on an equal basis with all other Shares on all matters properly presented to the shareholders stockholders of the Company; or
(b) any statute, rule, regulation, order or injunction shall be enacted, promulgated, entered, enforced or deemed to or become applicable to the Merger Agreement, the Offer, Offer or the Merger, the Shareholder Agreement or any other action shall have been taken by any court or other Governmental Entity, that could is reasonably be expected likely to result in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iii) of paragraph (a) above; or
(c) (i) the representations and warranties of the Company as set forth in Section 3.1(b) of the Merger Agreement shall not be true and correct in all material respects as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (ii) the representations and warranties of the Company set forth in the Merger Agreement (other than those set forth in Section 3.1(b) of the Merger Agreement), (x) to the extent qualified by Material Adverse Effect shall not be true and correct and (y) to the extent not qualified by Material Adverse Effect shall not be true and correct, except that this clause (y) shall be deemed satisfied so long as any failures of such representations and warranties to be true and correct, taken together, do not have a Material Adverse Effect on the Company, in the case of each of clauses (x) and (y) as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the consummation of the Offer as though made on and as of such date; (iii) the Company shall have breached or failed to comply in any material respect with any of its material obligations, covenants or agreements under the Merger Agreement; or (iv) any change or event shall have occurred that has, or could is reasonably be expected likely to have, a Material Adverse Effect on the Company; or
(d) there shall have occurred (i) any general suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market; (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, the European Union or the United Kingdom; (iii) any material limitation (whether or not mandatory) by any Governmental Entity on the extension of credit by banks or other lending institutions; (iv) a suspension of, or limitation on, the currency exchange markets or the imposition of, or material changes in, any currency or exchange control laws in the United States or abroad; (v) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States or the Netherlands which could reasonably be expected to have a Material Adverse Effect on Numico or the Company or prevent (or materially delay) the consummation of the Offer; or (vi) in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or a worsening thereof; or
(i) if the holders of Shares which are the subject of the Shareholder Agreement shall have either (A) failed to tender in the Offer (and not withdrawn) a majority of the outstanding Shares or (B) in any material respect, failed to vote, failed to act by consent or have interfered with or have frustrated the exercise of the rights conferred upon the holders of proxies identified and set forth in the Shareholder Agreement, or (ii) any of the representations and warranties of any such party set forth in the Shareholder Agreement shall not be true in any material respect, in each case, when made or at any time prior to the consummation of the Offer as if made at and as of such time, or (iii) the Shareholder Agreement shall have been invalidated or terminated with respect to any Shares subject thereto; or
(f) the Board of Directors of the Company (or any special committee thereof) shall have withdrawn or materially modified in any manner adverse to Numico or the Purchaser its approval or recommendation of the Offer, the Merger or the Merger Agreement; or
(g) the Company shall have entered into or shall have publicly announced its intention to enter into, an agreement or agreement in principle with respect to any Acquisition Proposal; or
(h) the Merger Agreement or the Shareholder Agreement shall have been terminated in accordance with its terms. The conditions set forth in clauses (a) through (hd) are for the sole benefit of Numico and the Purchaser and may be asserted by Numico and the Purchaser regardless of the circumstances giving rise to such condition and may be waived by Numico and the Purchaser in whole or in part at any time and from time to time, by express and specific action to that effect in their sole discretion. The failure by Numico or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The capitalized terms used in this Section 12 shall have the meanings set forth in the Merger Agreement.
Appears in 1 contract
CERTAIN CONDITIONS TO THE OFFER. Notwithstanding any other provision of the Offer, and subject to the terms and conditions of the Merger Agreement, the Purchaser shall not be obligated to accept for payment any Shares until all authorizations, consents, orders and approvals of, and declarations and filings with, and all expirations of waiting periods imposed by, any Governmental Entity which, if not obtained in connection with the consummation of the transactions contemplated by the Merger Agreement, could reasonably be expected to have a Material Adverse Effect on the Company or prevents the Company, Numico or Purchaser from consummating the transactions contemplated by the Merger Agreement (collectively, "Required Regulatory Approvals") shall have been obtained, made or satisfied, including the expiration or earlier termination of any waiting periods applicable under the HSR Act, and the Purchaser LCC shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (SEC, including Rule 14e-1(c) promulgated under the Exchange Act) Act (relating to LCC's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or or, subject to the restriction referred to above, the payment for, any Shares tendered in Shares, and may amend the Offer and (subject to the terms and conditions of the Merger Agreement, including Section 1.1(b) thereof), may amend, extend or terminate the Offer ifand not accept for payment any tendered Shares. Notwithstanding any other provisions of the Offer, immediately prior or any extension of the Offer, LCC will not be required to accept for purchase any Shares if any of the following conditions has occurred or exists or has not been satisfied or waived before or as of the expiration of the Offer (as extended in accordance with the Merger Agreement) the Minimum Condition shall not have been satisfied or any of the following shall occurOffer:
(a) there shall be threatened or pending any actiongovernmental approval, litigation or proceeding (hereinafterincluding, an "Action") without limitation approval by any Governmental Entity or other Person: (i) challenging the acquisition by Numico or the Purchaser of Shares or seeking to restrain or prohibit the consummation of the Offer or the Merger; (ii) seeking to prohibit or impose any material limitation (including any hold separate obligation) on Numico'sBermuda Monetary Authority, the Purchaser's or any of their respective affiliates' ownership or operation of all or any material portion of the business or assets of the Company and has not been obtained, which approval LCC shall, in its subsidiaries taken as a whole or Numico and its subsidiaries taken as a whole; or (iii) seeking to impose material limitations on the ability of Numico or the Purchaser effectively to acquire or holdsole discretion, or to exercise full rights of ownership of, the Shares including the right to vote the Shares purchased by them on an equal basis with all other Shares on all matters properly presented to the shareholders of the Company; or
(b) any statute, rule, regulation, order or injunction shall be enacted, promulgated, entered, enforced or deemed to or become applicable to the Merger Agreement, the Offer, the Merger, the Shareholder Agreement or any other action shall have been taken by any court or other Governmental Entity, that could reasonably be expected to result in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iii) of paragraph (a) above; or
(c) (i) the representations and warranties of the Company as set forth in Section 3.1(b) of the Merger Agreement shall not be true and correct in all material respects as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of deem necessary for the consummation of the Offer as though made on and as contemplated hereby (At present, LCC is not aware of such date; (ii) any filings, approvals or other actions by or with any domestic, foreign or supranational governmental authority or administrative or regulatory agency that would be required prior to the representations and warranties acquisition of the Company set forth in Shares by LCC pursuant to the Merger Agreement Offer as contemplated herein.); See "THE TENDER OFFER - CERTAIN LEGAL MATTERS; REQUIRED REGULATORY APPROVALS;"
(other than those set forth in Section 3.1(bb) Any court approval, including, with respect to Non-Street Name Shares, the sanction of the Merger Agreement), (x) Bermuda Supreme Court pursuant to the extent qualified by Material Adverse Effect shall provisions of the Bermuda Companies Act 1981 has not be true and correct and (y) to the extent not qualified by Material Adverse Effect shall not be true and correctbeen obtained, except that this clause (y) shall be deemed satisfied so long as any failures of such representations and warranties to be true and correct, taken together, do not have a Material Adverse Effect on the Companywhich approval LCC shall, in the case of each of clauses (x) and (y) as of the date of the Merger Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of its sole discretion, deem necessary for the consummation of the Offer as though made on and contemplated hereby or for the purchase of Non-Street Name Shares (At present, LCC is not aware of any court approvals that would be required prior to the acquisition of the Shares by LCC pursuant to the Offer as contemplated herein. except in respect of such datethe Non-Street Name Shares.); See "THE TENDER OFFER - CERTAIN LEGAL MATTERS; REQUIRED REGULATORY APPROVALS;"
(iiic) any tender or exchange offer (other than the Company Offer) with respect to some or all of the outstanding Shares shall have breached been proposed, announced or failed to comply made by any person, entity or group or a merger, acquisition or other business combination proposal for Holdings shall have been proposed, announced or made by any person, entity or group;
(d) any action or proceeding shall have been instituted or threatened in any material court or by or before any governmental agency or body with respect with any of its material obligationsto the Offer which, covenants or agreements under the Merger Agreement; or (iv) any change or event shall have occurred that hasin LLC's judgment, or could would reasonably be expected to have, a Material Adverse Effect on impair its ability to proceed with the Company; orOffer;
(de) there any law, statute, rule or regulation shall have occurred (i) any general suspension of trading inbeen adopted or enacted which, or limitation on prices for, securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market; (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United Statesjudgment of LCC, the European Union or the United Kingdom; (iii) any material limitation (whether or not mandatory) by any Governmental Entity on the extension of credit by banks or other lending institutions; (iv) a suspension of, or limitation on, the currency exchange markets or the imposition of, or material changes in, any currency or exchange control laws in the United States or abroad; (v) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States or the Netherlands which could would reasonably be expected to have a Material Adverse Effect on Numico or the Company or prevent (or materially delay) the consummation of impair its ability to proceed with the Offer; or (vi) in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or a worsening thereof; or
(i) if the holders of Shares which are the subject of the Shareholder Agreement shall have either (A) failed to tender in the Offer (and not withdrawn) a majority of the outstanding Shares or (B) in any material respect, failed to vote, failed to act by consent or have interfered with or have frustrated the exercise of the rights conferred upon the holders of proxies identified and set forth in the Shareholder Agreement, or (ii) any of the representations and warranties of any such party set forth in the Shareholder Agreement shall not be true in any material respect, in each case, when made or at any time prior to the consummation of the Offer as if made at and as of such time, or (iii) the Shareholder Agreement shall have been invalidated or terminated with respect to any Shares subject thereto; or;
(f) the Board of Directors of the Company (or any special committee thereof) a banking moratorium shall have withdrawn been declared by United States federal or materially modified state authorities which, in any manner adverse the judgment of LCC, would reasonably be expected to Numico or the Purchaser impair its approval or recommendation of ability to proceed with the Offer, the Merger or the Merger Agreement; or
(g) trading on the Company shall have entered into New York Stock Exchange or shall have publicly announced its intention to enter into, an agreement or agreement generally in principle with respect to any Acquisition Proposal; or
(h) the Merger Agreement or the Shareholder Agreement United States over-the-counter market shall have been terminated suspended by order of the SEC or any other governmental authority which, in accordance the judgment of LCC, would reasonably be expected to impair its ability to proceed with its termsthe Offer. Additionally, LCC may determine not to accept tendered Shares to the extent that Holdings is unable to effect the transfer of record ownership of such Shares while it is in liquidation, and if the Shares are not held of record by CEDE or another nominee acceptable to LCC. The foregoing conditions set forth in clauses (a) through (h) are for the sole benefit of Numico and the Purchaser LCC and may be asserted by Numico and the Purchaser it regardless of the circumstances giving rise to such condition and conditions or, LCC may be waived by Numico and the Purchaser waive such conditions, in whole or in part at any time and or from time to time, by express and specific action to that effect before or as of the expiration of the Offer in their its sole discretion. The failure by Numico or the Purchaser LCC at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any such right, the . The waiver of any such right with respect to any particular facts and other or circumstances shall not be deemed a waiver with respect to any other facts and or circumstances, and each such right shall will be deemed an ongoing right that may be asserted at any time and from time to time. The capitalized terms used A public announcement shall be made of a material change in, or waiver of, the foregoing conditions, and the Offer may, in this Section 12 shall have the meanings set forth certain circumstances, be extended in the Merger Agreementconnection with any such change or waiver.
Appears in 1 contract
