Conditions of the Offer. The Merger Agreement provides that the Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’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, subject to the restriction referred to above, the payment for, any validly tendered Shares, and may terminate the Offer as to any Shares not then paid for, unless by the expiration of the Offer (as it may be extended in accordance with the Merger Agreement): (i) the Minimum Condition shall have been satisfied; or (ii) at any time on or after the date of the Merger Agreement and prior to the acceptance of Shares, none of the following events shall have occurred or be continuing: (a) there is any Law or order enacted, entered, enforced, promulgated or deemed applicable to the Offer or the Merger that prohibits or makes illegal consummation of the Offer or the Merger; (b) since the date of the Merger Agreement, there has occurred any effect, change, development, event or circumstance that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect; (c) any of the representations and warranties of the Company: (i) relating to the Company’s capitalization shall not be true and correct in all material respects as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date shall be true and correct in all material respects as of such specified date) (solely for purposes of clause (i), material shall mean $1,000,000); and (ii) set forth in the Merger Agreement (other than those representations and warranties referred to in clause (i) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, are not be true and correct in each case as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date must be true and correct in all respects as of such specified date), except in the case of this clause (ii) for such failures to be true and correct as either individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; 43 Table of Contents (d) the Company has breached or failed, in any material respect, to perform or to comply with any agreement or covenant to be performed or complied with by it under the Merger Agreement at or prior to the date of determination; (e) Parent and Purchaser have not received a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf of the Company that the conditions set forth in clauses (b), (c) and (d) of paragraph (ii) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time; (i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the failure to obtain such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; (g) the Company has entered into a definitive agreement or agreement in principal with any Person with respect to a Company Acquisition Proposal; (h) the Company Board of Directors has made a Recommendation Withdrawal; or (i) the Merger Agreement has been terminated in accordance with its terms. These conditions are for the sole benefit of Parent and Purchaser and may be waived by Parent or Purchaser, in whole or in part at any time and from time to time in the sole discretion of Parent or Purchaser, subject in each case to the terms of the Merger Agreement (except for any condition that may only be waived with the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”). The failure by Parent or Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and, each such right will be deemed an ongoing right which may be asserted at any time and from time to time.
Appears in 1 contract
Conditions of the Offer. The For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement provides that have the meanings set forth in the Merger Agreement, a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions below. Purchaser will not be required to, and Lilly shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(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, for any Shares tendered pursuant to the Offer and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the restriction referred to aboveSEC, the payment for, any validly tendered Shares, and (subject to the provisions of the Merger Agreement) may terminate not accept for payment any tendered Shares if, at the Offer as to any Shares not then paid for, unless by the then-scheduled expiration of the Offer (as it may be extended in accordance with Offer, any of the Merger Agreement):following conditions exist:
(i) the Minimum Tender Condition shall have has not been satisfied; or;
(ii) the Antitrust Condition has not been satisfied;
(iii) the Legal Restraint Condition has not been satisfied;
(iv) (A) certain specified representations or warranties of ARMO set forth in Article III of the Merger Agreement (other than those set forth in Sections 3.01, 3.02(a)-(d), 3.04, 3.08(a), 3.20, 3.22 and 3.23 of the Merger Agreement) shall not be true and correct at any time on or after and as of the date of the Merger Agreement and prior as of such time, except to the acceptance extent such representation or warranty expressly relates to a specified date (in which case on and as of Sharessuch specified date), none of the following events shall other than for such failures to be true and correct that have occurred not had or would not reasonably be continuing:
(a) there is any Law or order enacted, entered, enforced, promulgated or deemed applicable expected to the Offer or the Merger that prohibits or makes illegal consummation of the Offer or the Merger;
(b) since the date of the Merger Agreement, there has occurred any effect, change, development, event or circumstance thathave, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect;
”), (cB) any representation or warranty of ARMO set forth in Sections 3.01, 3.04, 3.20, 3.22 or 3.22 of the representations Merger Agreement (concerning ARMO’s organization, standing and warranties power; authority, execution and delivery, and enforceability; brokers and other advisors; opinion of the Company: (ifinancial advisors; and no vote required) relating to the Company’s capitalization shall not be true and correct in all material respects at and as of the date of the Merger Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (time, except that any to the extent such representation or warranty that is made as of expressly relates to a specified date shall be true (in which case on and correct in all material respects as of such specified date) (solely for purposes of clause (idetermining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality”), material shall mean $1,000,000); and (iiC) any representation or warranty of ARMO set forth in Section 3.02(a)-(d) of the Merger Agreement (other than those representations and warranties referred to in clause (iconcerning ARMO’s capital structure) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, are shall not be true and correct other than in each case de minimis respects at and as of the date of the Merger Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (in all respects at such time, except that any to the extent such representation or and warranty that is made as of expressly relates to a specified date must (in which case on and as of such specified date) and (D) any representation and warranty set forth in Section 3.08(a) of the Merger Agreement (concerning the absence of certain changes or events) shall not be true and correct in all respects as of at such specified date), except in the case of this clause (ii) for such failures to be true and correct as either individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; 43 Table of Contents
(d) the Company has breached or failed, in any material respect, to perform or to comply with any agreement or covenant to be performed or complied with by it under the Merger Agreement at or prior to the date of determinationtime;
(e) Parent and Purchaser have not received a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf of the Company that the conditions set forth in clauses (b), (c) and (d) of paragraph (ii) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the failure to obtain such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect;
(g) the Company has entered into a definitive agreement or agreement in principal with any Person with respect to a Company Acquisition Proposal;
(h) the Company Board of Directors has made a Recommendation Withdrawal; or
(i) the Merger Agreement has been terminated in accordance with its terms. These conditions are for the sole benefit of Parent and Purchaser and may be waived by Parent or Purchaser, in whole or in part at any time and from time to time in the sole discretion of Parent or Purchaser, subject in each case to the terms of the Merger Agreement (except for any condition that may only be waived with the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”). The failure by Parent or Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and, each such right will be deemed an ongoing right which may be asserted at any time and from time to time.
Appears in 1 contract
Samples: Offer to Purchase (Lilly Eli & Co)
Conditions of the Offer. The For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement provides that have the meanings set forth in the Merger Agreement, a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions below. Purchaser will not be required to, and Lilly shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(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, for any Shares tendered pursuant to the Offer and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the restriction referred to aboveSEC, the payment for, any validly tendered Shares, and (subject to the provisions of the Merger Agreement) may terminate not accept for payment any tendered Shares if, at the Offer as to any Shares not then paid for, unless by the then-scheduled expiration of the Offer (as it may be extended in accordance with Offer, any of the Merger Agreement):following conditions exist:
(i) the Minimum Tender Condition shall have has not been satisfied; or;
(ii) the Antitrust Condition has not been satisfied; Table of Contents
(iii) the Legal Restraint Condition has not been satisfied;
(iv) (A) any representations or warranties of Loxo Oncology set forth in Article III of the Merger Agreement (other than those set forth in Sections 3.01, 3.02(a), (c) and (d), 3.04, 3.08(a), 3.20, 3.22 and 3.23 of the Merger Agreement) shall not be true and correct at any time on or after and as of the date of the Merger Agreement at and prior as of such time, except to the acceptance extent such representation or warranty expressly relates to a specified date (in which case on and as of Sharessuch specified date), none of the following events shall other than for such failures to be true and correct that have occurred not had or would not reasonably be continuing:
(a) there is any Law or order enacted, entered, enforced, promulgated or deemed applicable expected to the Offer or the Merger that prohibits or makes illegal consummation of the Offer or the Merger;
(b) since the date of the Merger Agreement, there has occurred any effect, change, development, event or circumstance thathave, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect;
”), (cB) any representation or warranty of Loxo Oncology set forth in Sections 3.01, 3.04, 3.20, 3.22 or 3.23 of the representations Merger Agreement (concerning Loxo Oncology’s organization, standing and warranties power; authority, execution and delivery, and enforceability; brokers and other advisors; opinion of the Company: (ifinancial advisors; and no vote required) relating to the Company’s capitalization shall not be true and correct in all material respects at and as of the date of the Merger Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (time, except that any to the extent such representation or warranty that is made as of expressly relates to a specified date shall be true (in which case on and correct in all material respects as of such specified date) (solely for purposes of clause (idetermining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality”), material shall mean $1,000,000); and (iiC) any representation or warranty of Loxo Oncology set forth in the Merger Agreement (other than those representations and warranties referred to in clause (i) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, are not be true and correct in each case as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date must be true and correct in all respects as of such specified date), except in the case of this clause (ii) for such failures to be true and correct as either individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; 43 Table of Contents
(d) the Company has breached or failed, in any material respect, to perform or to comply with any agreement or covenant to be performed or complied with by it under the Merger Agreement at or prior to the date of determination;
(e) Parent and Purchaser have not received a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf of the Company that the conditions set forth in clauses (bSection 3.02(a), (c) and (d) of paragraph the Merger Agreement (iiconcerning Loxo Oncology’s capital structure) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated be true and (ii) all correct other consents, permits, notification than in de minimis respects at and approvals as of Governmental Entities in connection with the execution and delivery date of the Merger Agreement and at and as of such time in all respects at such time, except to the consummation extent such representation or warranty expressly relates to a specified date (in which case on and as of the transactions contemplated by such specified date) and (D) any representation or warranty of Loxo Oncology set forth in Section 3.08(a) of the Merger Agreement (concerning the absence of certain changes or events) shall not have been obtained, except be true and correct in the case of this clause (ii) where the failure to obtain all respects at such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effecttime;
(gv) Loxo Oncology shall have failed to perform in all material respects all obligations to be performed by it as of such time under the Company has entered into a definitive agreement or agreement in principal with any Person with respect to a Company Acquisition ProposalMerger Agreement;
(hvi) Lilly shall have failed to receive from Loxo Oncology a certificate, dated as of the Company Board date on which the Offer expires and signed by an executive officer of Directors has made a Recommendation WithdrawalLoxo Oncology, certifying to the effect that the conditions set forth in paragraphs (iv) and (v) immediately above do not exist and have not occurred; or
(ivii) the Merger Agreement has been terminated in accordance with its termsTermination Condition exists. These The foregoing conditions are for the sole benefit of Parent Lilly and Purchaser and, subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC, may be waived by Parent or Lilly and Purchaser, in whole or in part at any time and from time to time time, in the their sole discretion of Parent or Purchaser, subject in each case to the terms of the Merger Agreement (except for any condition that the Minimum Tender Condition and the Termination Condition, which may only not be waived with the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”by Lilly or Purchaser). The failure by Parent Lilly, Purchaser or Purchaser any other affiliate of Lilly at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right, the waiver of any such right and, with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances and each such right will be deemed an ongoing right which that may be asserted at any time and from time to time.
Appears in 1 contract
Samples: Offer to Purchase (Lilly Eli & Co)
Conditions of the Offer. The Merger Agreement provides that Notwithstanding any other term of the Offer, Purchaser will shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Purchaser’s 's obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay forfor any Shares tendered pursuant to the Offer unless the Minimum Condition is met prior to the Expiration Date or such later date as the Offer may be extended as provided in Section 1.1(a) of the Merger Agreement or by an amendment to the Merger Agreement. Furthermore, and may delay notwithstanding any other term of the acceptance Offer, Purchaser shall not be required to accept for payment of or, subject as aforesaid, to the restriction referred to above, the pay for any Shares not theretofore accepted for payment or paid for, any validly tendered Shares, and may terminate the Offer as Offer, subject to any Shares not then paid for, unless by the expiration terms and conditions of the Merger Agreement and Purchaser's obligation to extend the Offer (as it may be extended in accordance with pursuant to the Merger Agreement):
(i) the Minimum Condition shall have been satisfied; or
(ii) , if, at any time on or after the date of the Merger Agreement and prior to before the acceptance of Sharessuch Shares for payment or the payment therefor, none any of the following events shall have occurred or be continuing:conditions exists (capitalized terms below not previously defined having the meanings provided for in the Merger Agreement):
(a) there is any Law material Governmental Approvals required to be obtained or any material filings, notices or declarations with or to Governmental Authorities required to be made by the parties or their Subsidiaries, officers, directors and affiliates in order enactedto consummate the Offer, enteredshall fail to have been obtained or made, enforcedor if obtained or made, promulgated any such approval does or deemed applicable to the Offer would contain any conditions, limitations or the Merger restrictions that prohibits or makes illegal consummation of the Offer or the Merger;
(b) since the date of the Merger Agreement, there has occurred any effect, change, development, event or circumstance that, individually or in the aggregate, has had have or would reasonably be expected to have a Company Material Adverse Effect or Parent Material Adverse Effect;
(b) a Governmental Entity shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, injunction or other order which is in effect and has the effect of making the acquisition of Shares by Purchaser, the Offer, the Merger or the other transactions contemplated by the Merger Agreement illegal or prohibits or imposes material limitations on the ability of Purchaser to consummate the Offer, the Merger or the acquisition of the Shares or otherwise prohibits(directly or indirectly) consummation of the transactions contemplated by the Merger Agreement or prohibits or imposes material limitations on the ability of Parent to own or operate all or a material portion of the Company's and its subsidiaries' businesses or assets, taken as a whole;
(c) any of the representations and warranties of the Company: (i) relating Company set forth in the Merger Agreement that are qualified as to the Company’s capitalization materiality shall not be true and correct, or any such representations and warranties that are not so qualified shall not be true and correct in all any material respects as of respect, in each case at the date of the Merger Agreement and at all times prior to the consummation scheduled or extended expiration of the Offer as if made at and (unless a representation speaks as of such time (except that an earlier date, in which case if any such representation or warranty that is made as of a specified date shall be true and correct in all material respects as of such specified date) (solely for purposes of clause (i), material shall mean $1,000,000); and (ii) set forth in the Merger Agreement (other than those representations and warranties referred to in clause (i) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, are not be true and correct in each case as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date must be true and correct in all respects as of such specified date), except in the case of this clause (ii) for such failures to be true and correct as either individually or in of such earlier date), which breaches have not been cured within 10 business days after the aggregate, has not had and would not reasonably be expected giving of written notice to have a Company Material Adverse Effect; 43 Table of Contentsthe Company;
(d) the Company has breached or failed, shall have failed to perform in any material respect, to perform respect any obligation or to comply in any material respect with any agreement or covenant of the Company to be performed or complied with by it under this Merger Agreement, which breaches have not been cured within 10 business days after the Merger Agreement at or prior giving of written notice to the date of determination;Company; or
(e) Parent and Purchaser have not received a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf of the Company that the conditions set forth in clauses (b), (c) and (d) of paragraph (ii) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the failure to obtain such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect;
(g) the Company has entered into a definitive agreement or agreement in principal with any Person with respect to a Company Acquisition Proposal;
(h) the Company Board of Directors has made a Recommendation Withdrawal; or
(i) the Merger Agreement has been terminated in accordance with its terms;
(f) Parent, Purchaser and/or one or more of their respective subsidiaries shall not have obtained the Debt Financing (as defined in Section 10), on terms and conditions satisfactory in form and substance to Parent and Purchaser in their sole reasonable discretion (including the availability of funds for the loans described in "Special Factors -- Interests of Certain Persons", which loans shall be permitted to be made immediately after the Effective Time) in amounts that, together with cash and cash equivalents of the Company as of the Effective Date, is sufficient to satisfy the Uses of Funds (as defined in the Merger Agreement) (the "Financing Condition");
(g) the number of Shares as to which the holders thereof have properly exercised, or reasonably appear to have properly exercised, dissenters' rights, if any, with respect to the Merger exceed three percent (3%) of the total number of Shares outstanding as of the date of the Merger Agreement, which, in the reasonable judgment of Parent or Purchaser in any such case, and regardless of the circumstances (including any action or omission by Parent or Purchaser) giving rise to any such condition, makes it inadvisable to proceed with such acceptance for payment or payments therefor. These The foregoing conditions in paragraphs (a) through (g) are for the sole benefit of Purchaser and Parent and Purchaser may, subject to the terms of the Merger Agreement and may except for the Minimum Condition, be waived by Purchaser and Parent or Purchaser, in whole or in part at any time and from time to time in the their sole discretion of Parent or Purchaser, subject in each case to the terms of the Merger Agreement (except for any condition that may only be waived with the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”)discretion. The failure by Parent or Purchaser at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any such right, the waiver of any such right and, with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right will shall be deemed an ongoing right which that may be asserted at any time and from time to time.
Appears in 1 contract
Conditions of the Offer. The Notwithstanding any other term of the Offer but subject to the terms set forth in the Merger Agreement provides that the Purchaser will Agreement, we are not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’s our obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for, and may delay the acceptance for payment of or, subject any Shares tendered pursuant to the restriction referred Offer and, only after complying with any obligation to aboveextend the Offer pursuant to the Merger Agreement, the payment for, any validly tendered Shares, and may terminate the Offer as to any Shares not then paid forOffer, unless by the expiration of the Offer (as it may be extended in accordance with the Merger Agreement):if:
(i) the Minimum Tender Condition shall have been is not satisfied;
(ii) the Antitrust Condition is not satisfied; or
(iiiii) at any time on or after the date of the Merger Agreement and prior to the acceptance of Shares, none of the following events conditions shall have occurred or be continuingexist at the time of expiration of the Offer:
(a) there is A. any Law binding order, injunction, judgment, decree, writ, ruling issued by a competent court or order governmental authority, or any law or similar requirement enacted, entered, enforcedadopted, promulgated or deemed applicable to applied that would (1) make the Offer or the Merger that prohibits illegal or makes illegal (2) otherwise prevent the consummation of the Offer or the Mergerthereof;
(b) B. since the date of the Merger Agreement, there has shall have occurred and be continuing any effectevent, change, development, event effect or circumstance development that, individually or in the aggregate, has had or would reasonably be expected to have have, a Company Material Adverse Effect;
(c1) any representation and warranty of ZOLL set forth in Section 4.02 (relating to corporate power and authorization) or Section 4.05 (relating to capitalization) of the representations and warranties of the Company: (i) relating to the Company’s capitalization Merger Agreement shall not be true and correct in all material but immaterial respects as of the date of the Merger Agreement and at all times prior to the consummation of the Offer as if made at and as of such time, except to the extent such representation and warranty expressly relates to an earlier time (except that any such representation or warranty that is made as of a specified date shall be true in which case on and correct in all material respects as of such specified dateearlier time) or (solely for purposes 2) any other representation and warranty of clause (i), material shall mean $1,000,000); and (ii) ZOLL set forth in the Merger Agreement (other than those representations and warranties referred to in clause (i) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, are shall not be true and correct in each case as of the date of the Merger Agreement and at all times prior to the consummation of the Offer as if made at and as of such time, except to the extent such representation and warranty expressly relates to an earlier time (except that any such representation or warranty that is made as of a specified date must be true in which case on and correct in all respects as of such specified dateearlier time), except other than in the case of this clause (ii2) for such failures to be true and correct as either that, individually or in the aggregate, has have not had and would not reasonably be expected to have a Company Material Adverse Effect (it being understood that for this purpose all references to the term “Company Material Adverse Effect; 43 ” and other Table of ContentsContents qualifications based on the word “material,” except for the reference to the term “Company Material Adverse Effect” in Section 4.10 (relating to the absence of changes to ZOLL), shall be disregarded). Solely for the purposes of clause (1) above, if one or more inaccuracies in the representations and warranties referred to in such clause resulted in or would result in aggregate monetary losses or damages of less than $5,000,000, such inaccuracies will be deemed immaterial;
(d) the Company has breached or failed, X. XXXX shall have failed to perform in any material respect, to perform respect any obligation or to comply in any material respect with any agreement or covenant of ZOLL to be performed or complied with by it under the Merger Agreement at or prior to such time;
X. XXXX fails to deliver to us a certificate signed by a senior executive officer of XXXX dated the date of determination;
(e) Parent and Purchaser have not received a certificate executed by on which the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf of the Company Offer expires certifying that the conditions set forth specified in clauses (b), (cC) and (d) of paragraph (iiD) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time;paragraph (iii) do not exist; or
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation of the transactions contemplated by F. the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the failure to obtain such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect;
(g) the Company has entered into a definitive agreement or agreement in principal with any Person with respect to a Company Acquisition Proposal;
(h) the Company Board of Directors has made a Recommendation Withdrawal; or
(i) the Merger Agreement has been terminated in accordance with its terms. These The conditions are for the sole benefit of Parent set forth in paragraph (ii) and Purchaser and paragraph (iii) above may be waived by Parent Asahi Kasei or Purchaser, Purchaser in whole or in part at any time and from time to time in the sole discretion of Parent Asahi Kasei or Purchaser, subject in each case to the terms of the Merger Agreement (except for any condition that may only be waived with and applicable law. Any reference in Offer to Purchase or in the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”)to a condition or requirement being satisfied shall be deemed met if the condition or requirement is waived. These conditions are in addition to Asahi Kasei’s and Purchaser’s rights to extend, terminate and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement or applicable law. The failure by Parent Asahi Kasei, Purchaser or Purchaser any other affiliate of Asahi Kasei at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any such right, the waiver of any such right and, with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right will shall be deemed an ongoing right which that may be asserted at any time and from time to time. The Merger Agreement provides for a condition relating to receipt of approval of the Taiwan Fair Trade Commission in respect of Taiwanese merger control rules. Asahi Kasei and Purchaser have waived this condition.
Appears in 1 contract
Samples: Offer to Purchase (Asahi Kasei Corp)
Conditions of the Offer. The Merger Agreement provides that Notwithstanding any other term of the Offer, the Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’s obligation or to pay for any Units tendered if (i) the Purchaser has reason to believe that upon the purchase of Units pursuant to the Offer, the General Partner will not recognize as valid or return effective the transfer to the Purchaser of the Units tendered Shares pursuant to the Offer, will not admit the Purchaser to the Partnership as a recognized Unitholder simultaneously with or promptly after termination or withdrawal the consummation of the Offer)Offer or will not permit the Purchaser to exercise the proxies granted to the Purchaser by tendering Unitholders, pay foror (ii) all authorizations, consents, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, necessary for the consummation of the transactions contemplated by the Offer shall not have been filed, occurred or been obtained. Furthermore, notwithstanding any other term of the Offer and may delay in addition to the acceptance Purchaser's right to withdraw the Offer at any time before the Expiration Date, the Purchaser will not be required to accept for payment of or, subject to the restriction referred to above, the or pay for any Units not theretofore accepted for payment for, any validly tendered Shares, or paid for and may terminate or amend the Offer as to any Shares not then paid forsuch Units if, unless by the expiration of the Offer (as it may be extended in accordance with the Merger Agreement):
(i) the Minimum Condition shall have been satisfied; or
(ii) at any time on or after the date of the Merger Agreement Offer and prior to before the acceptance of Sharessuch Units for payment or the payment therefor, none any of the following events shall have occurred or be continuingconditions exists:
(a) there is a preliminary or permanent injunction or other order of any Law federal or order enactedstate court, enteredgovernment or governmental authority or agency shall have been issued and shall remain in effect which (i) makes illegal, enforced, promulgated delays or deemed applicable to otherwise directly or indirectly restrains or prohibits the Offer or the Merger that prohibits or makes illegal consummation making of the Offer or the Merger;
(b) since acceptance for payment, purchase of or payment for any Units by the date of the Merger AgreementPurchaser, there has occurred any effect, change, development, event or circumstance that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect;
(c) any of the representations and warranties of the Company: (i) relating to the Company’s capitalization shall not be true and correct in all material respects as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date shall be true and correct in all material respects as of such specified date) (solely for purposes of clause (i), material shall mean $1,000,000); and (ii) set forth in imposes or confirms limitations on the Merger Agreement (other than those representations and warranties referred ability of the Purchaser effectively to in clause (i) above)exercise full rights of ownership of any Units, including, without giving effect limitation, the right to direct the vote with respect to any materiality Units acquired by the Purchaser pursuant to the Offer or “Company Material Adverse Effect” qualifications thereinotherwise on all matters properly presented to the Partnership's Unitholders, are not be true and correct in each case as (iii) requires divestiture by the Purchaser of any Units, (iv) causes any material diminution of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date must be true and correct in all respects as of such specified date), except in the case of this clause (ii) for such failures benefits to be true and correct as either individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; 43 Table of Contents
(d) the Company has breached or failed, in any material respect, to perform or to comply with any agreement or covenant to be performed or complied with by it under the Merger Agreement at or prior to the date of determination;
(e) Parent and Purchaser have not received a certificate executed derived by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf of the Company that the conditions set forth in clauses (b), (c) and (d) of paragraph (ii) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation Purchaser as a result of the transactions contemplated by the Merger Agreement shall not have been obtainedOffer, except in or (v) might materially adversely affect the case business, properties, assets, liabilities, financial condition, operations, results of this clause (ii) where operations or prospects of the failure to obtain such consent, permit, notification Purchaser or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse EffectPartnership;
(gb) the Company has entered into a definitive agreement there shall be any action taken, or agreement in principal with any Person with respect to a Company Acquisition Proposal;
(h) the Company Board of Directors has made a Recommendation Withdrawal; or
(i) the Merger Agreement has been terminated in accordance with its terms. These conditions are for the sole benefit of Parent and Purchaser and may be waived by Parent statute, rule, regulation or Purchaserorder proposed, in whole enacted, enforced, promulgated, issued or in part at any time and from time to time in the sole discretion of Parent or Purchaser, subject in each case to the terms of the Merger Agreement (except for any condition that may only be waived with the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”). The failure by Parent or Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and, each such right will be deemed an ongoing right which may be asserted at any time and from time to time.applicable
Appears in 1 contract
Conditions of the Offer. The Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement and Plan of Merger Agreement provides that (the Purchaser will "Agreement") of which this Annex I is a part. Notwithstanding any other provision of the Offer, Acquisition Co. shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Purchaser’s Acquisition Co.'s obligation to pay for or return tendered Shares shares of Company Common Stock promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the restriction referred to aboveSEC, the payment for, any validly tendered Sharesshares of Company Common Stock, and may amend the Offer consistent with the terms of the Agreement or terminate the Offer as to and not accept for payment any Shares not then paid fortendered shares of Company Common Stock, unless by the expiration of the Offer (as it may be extended in accordance with the Merger Agreement):
if (i) the Minimum Condition shall not have been satisfied; or
satisfied at the time of expiration of the Offer (as the same may be extended pursuant to the Agreement), or (ii) at on any time on or after the scheduled expiration date of the Merger Agreement and prior to the acceptance of Shares, none any of the following events or circumstances shall have occurred occur or be continuingexist:
(a) there is the waiting period (or any Law or order enacted, entered, enforced, promulgated or deemed extension thereof) applicable to the Offer or the Merger that prohibits under the HSR Act shall not have expired or makes illegal consummation of the Offer or the Mergerbeen terminated;
(b) since any waiting period applicable to the date of Offer or the Merger Agreementunder any applicable foreign antitrust or competition-related legal requirements shall not have expired or been terminated, there has occurred and any consent required under any applicable foreign antitrust or competition-related legal requirement in connection with the Offer or the Merger shall not have been obtained or not be in full force and effect, change, development, ;
(c) any event or circumstance that, individually or in the aggregate, that has had or would reasonably be expected to have result in a Company Material Adverse Effect;
(ci) any general suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange or Nasdaq Global Select Market, (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States or any limitation by federal or state authorities on the extension of credit by lending institutions, or a disruption of or material adverse change in either the syndication market for credit facilities or the financial, banking or capital markets that have a disproportionate adverse effect on the Company and its Subsidiaries taken as a whole relative to other industry participants, or (iii) a commencement of war or armed hostilities (other than a continuation of such wars, conflicts or actions in which the United States armed forces were engaged as of the date of the Agreement) directly involving the United States or any other jurisdiction in which the Company or any of the Company's Subsidiaries has material assets or operations, provided that such action results in a Company Material Adverse Effect or materially or adversely affects or delays the consummation of the Offer;
(e) any of the representations and warranties of the Company: (i) relating to the Company’s capitalization shall not be true and correct in all material respects as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date shall be true and correct in all material respects as of such specified date) (solely for purposes of clause (i), material shall mean $1,000,000); and (ii) Company set forth in the Merger Agreement (other than those representations and warranties referred to in clause (i) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications similar qualification contained therein, are ) shall not be true and correct in each case correct, as of the date of the this Agreement and at all times prior or as of a date subsequent to the consummation date of the Offer this Agreement as if made at and as on such subsequent date, except to the extent the failure of such time (except that any such representation or warranty that is made as of a specified date must be true representations and correct in all respects as of such specified date), except in the case of this clause (ii) for such failures warranties to be true and correct as either individually (without giving effect to any materiality or similar qualification contained therein), taken together in the aggregatetheir entirety, has not had and would not reasonably be expected to have a Company Material Adverse Effect; 43 Table provided, however, that any such breach capable of Contentsbeing cured has not in fact been cured prior to the initial expiration date of the Offer (or such later date upon which the Offer shall expire in accordance with Section 1.1(d));
(df) the Company has breached or failedshall not have performed and complied, in any all material respectrespects, to perform with each covenant or to comply with any agreement or covenant contained in the Agreement and required to be performed or complied with by it under the Merger Agreement at or prior to the date of determination;
(e) Parent and Purchaser have not received a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf of the Company that the conditions set forth in clauses (b), (c) and (d) of paragraph (ii) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the such failure to obtain such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse EffectEffect and such failure is incapable of being cured or has not been cured during the grace period described in the proviso below; provided, however, if such breach is curable by the Company, then Parent may not terminate the Agreement under Section 8.1(d) of the Agreement with respect to a particular breach prior to or during the ten-business-day period commencing upon delivery by Parent of written notice to the Company of such breach, so long as the Company continues to exercise commercially reasonable efforts to cure such breach during such ten-business-day period;
(g) any temporary restraining order, preliminary or permanent injunction or other order preventing the Company has entered into consummation of the Offer or the Merger or any of the other transactions contemplated by the Agreement shall be pending or shall have been issued by any court of competent jurisdiction and remain in effect, or there shall be any Law enacted or deemed applicable by a definitive agreement Governmental Body to the Offer or agreement in principal with the Merger or any Person with respect to a Company Acquisition Proposalof the other transactions contemplated by the Agreement that makes consummation of the Offer, the Merger or any of the other transactions contemplated by the Agreement illegal;
(h) any antitrust regulator or body having decided to take, institute, implement or threaten any action proceeding, suit, investigation, enquiry or reference, or having required any action to be taken or otherwise having done anything or having enacted, made or proposed any statute, regulation, decision, order or change to published practice or there would be outstanding any statute, regulation, decision or order which would or might:
1. impose any limitation on, or result in a delay in, the ability of Parent or Acquisition Co. directly or indirectly to acquire or hold or to exercise effectively all or any rights of ownership in respect of shares or other securities (or the equivalent) in the Company Board or its Subsidiaries or on the ability of Directors has made a Recommendation Withdrawal; Parent directly or indirectly to hold or exercise effectively any rights of ownership in respect of shares or other securities (or the equivalent) in, or to exercise management control over, the Company or any of its Subsidiaries, or
2. require Parent, Company or Acquisition Co. to divest any of their respective assets or businesses in connection with the Offer and the Merger or any of the transactions contemplated by the Agreement;
(i) the Merger failure of the Company to obtain any necessary consent to the transactions contemplated by this Agreement has required by the Contracts with the Company's vendors identified in writing by the Parent to the Company on or prior to the date of this Agreement; or
(j) the Agreement shall have been terminated in accordance with its terms. These conditions are for the sole benefit of Parent and Purchaser and may be waived by Parent or Purchaser, in whole or in part at any time and from time to time in the sole discretion of Parent or Purchaser, subject in each case to the terms of the Merger Agreement (except for any condition that may only be waived with the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”). The failure by Parent or Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and, each such right will be deemed an ongoing right which may be asserted at any time and from time to time.
Appears in 1 contract
Conditions of the Offer. The For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement provides that have the meanings set forth in the Merger Agreement, a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions below. Purchaser will not be required to, and Lilly shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(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, for any Shares tendered pursuant to the Offer and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the restriction referred to aboveSEC, the payment for, any validly tendered Shares, and (subject to the provisions of the Merger Agreement) may terminate not accept for payment any tendered Shares if, at the Offer as to any Shares not then paid for, unless by the then-scheduled expiration of the Offer (as it may be extended in accordance with Offer, any of the Merger Agreement):following conditions exist:
(i) the Minimum Tender Condition shall have has not been satisfied; or;
(ii) the Antitrust Condition has not been satisfied;
(iii) the Legal Restraint Condition has not been satisfied;
(iv) (A) any representations or warranties of Dermira set forth in Article III of the Merger Agreement (other than those set forth in Sections 3.01, 3.02(a), (c) and (d), 3.04, 3.08(a), 3.20, 3.22 and 3.23 of the Merger Agreement) shall not be true and correct at any time on or after and as of the date of the Merger Agreement at and prior as of such time, except to the acceptance extent such representation or warranty expressly relates to a specified date (in which case on and as of Sharessuch specified date), none of the following events shall other than for such failures to be true and correct that have occurred not had or would not reasonably be continuing:
(a) there is any Law or order enacted, entered, enforced, promulgated or deemed applicable expected to the Offer or the Merger that prohibits or makes illegal consummation of the Offer or the Merger;
(b) since the date of the Merger Agreement, there has occurred any effect, change, development, event or circumstance thathave, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect;
”), (cB) any representation or warranty of Dermira set forth in Sections 3.01, 3.04, 3.20, 3.22 or 3.23 of the representations Merger Agreement (concerning Dermira’s organization, standing and warranties power; authority, execution and delivery, and enforceability; brokers and other advisors; opinion of the Company: (ifinancial advisors; and no vote required) relating to the Company’s capitalization shall not be true and correct in all material respects at and as of the date of the Merger Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (time, except that any to the extent such representation or warranty that is made as of expressly relates to a specified date shall be true (in which case on and correct in all material respects as of such specified date) (solely for purposes of clause (idetermining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality”), material shall mean $1,000,000); and (iiC) any representation or warranty of Dermira set forth in Section 3.02(a), (c) and (d) of the Merger Agreement (other than those representations and warranties referred to in clause (iconcerning Dermira’s capital structure) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, are shall not be true and correct other than in each case de minimis respects at and as of the date of the Merger Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (in all respects at such time, except that any to the extent such representation or warranty that is made as of expressly relates to a specified date must (in which case on and as of such specified date) and (D) any representation or warranty of Dermira set forth in Section 3.08(a) of the Table of Contents Merger Agreement (concerning the absence of certain changes or events) shall not be true and correct in all respects as of such specified date), except in the case of this clause (ii) for such failures to be true and correct as either individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; 43 Table of Contentstime;
(dv) the Company has breached or failed, in any material respect, Dermira shall have failed to perform or to comply with any agreement or covenant in all material respects the obligations to be performed or complied with by it as of such time under the Merger Agreement at or prior to the date of determinationAgreement;
(evi) Parent and Purchaser Lilly shall have not received failed to receive from Dermira a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf certificate, dated as of the Company date on which the Offer expires and signed by an executive officer of Dermira, certifying to the effect that the conditions set forth in clauses paragraphs (b), (civ) and (dv) immediately above have been satisfied as of paragraph (ii) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery expiration of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the failure to obtain such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect;
(g) the Company has entered into a definitive agreement or agreement in principal with any Person with respect to a Company Acquisition Proposal;
(h) the Company Board of Directors has made a Recommendation WithdrawalOffer; or
(ivii) the Merger Agreement has been terminated in accordance with its termsTermination Condition exists. These The foregoing conditions are for the sole benefit of Parent Lilly and Purchaser and, subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC, may be waived by Parent or Xxxxx and Purchaser, in whole or in part at any time and from time to time time, in the their sole discretion of Parent or Purchaser, subject in each case to the terms of the Merger Agreement (except for any condition that the Minimum Tender Condition and the Termination Condition, which may only not be waived with the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”by Xxxxx or Purchaser). The failure by Parent Xxxxx, Purchaser or Purchaser any other affiliate of Lilly at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right, the waiver of any such right and, with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances and each such right will be deemed an ongoing right which that may be asserted at any time and from time to time.
Appears in 1 contract
Samples: Offer to Purchase (ELI LILLY & Co)
Conditions of the Offer. The Merger Agreement provides that Notwithstanding any other provision of the Offer, Purchaser will is not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after termination or withdrawal expiration of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restriction referred to above, the payment for, any validly tendered Shares, and may terminate or amend the Offer as to Offer, if before the Expiration Date the Minimum Tender Condition, the Merger Agreement Condition, the Section 203 Condition or the Regulatory Condition shall not have been satisfied, or if any Shares not then paid for, unless by the expiration of the Offer (as it may be extended in accordance with the Merger Agreement):following conditions exist:
(i) the Minimum Condition a Governmental Authority of competent jurisdiction shall have been satisfied; or
(ii) at any time on or after the date of the Merger Agreement and prior to the acceptance of Shares, none of the following events shall have occurred or be continuing:
(a) there is any Law or order enacted, issued, granted, promulgated, entered, enforced, promulgated enforced or deemed applicable to the Offer, the Merger or any other transactions contemplated by the MITC Merger Agreement any Law that is in effect and has the effect of making the Offer or the Merger illegal, or which has the effect of prohibiting or otherwise preventing the Offer or the Merger or (b) issued or granted, or threatened to issue or grant, any judgment, decision, decree, injunction, ruling, writ, assessment or order of any Governmental Authority that prohibits is binding on any person or makes its property under applicable Laws (whether temporary preliminary or permanent) that has (or would be reasonably expected to have) the effect of making the Offer or the Merger illegal or which has (or would be reasonably expected to have) the effect of prohibiting or otherwise preventing the making or consummation of the Offer or Merger;
(ii) there shall be pending, or any Governmental Authority shall have notified MITC or Mxxxx of its intent to commence, any suit, action or proceeding by a Governmental Authority of competent jurisdiction against the Parent, the Purchaser, or Mxxxx or any of their respective subsidiaries (a) seeking to restrain or prohibit the making or consummation of the Offer or the MergerMerger or the performance of any of the other transactions contemplated by the MITC Merger Agreement or (b) seeking to prohibit or impose any limitations on the ownership or operation by the Parent (or any of its subsidiaries) of all or any portion of the business or assets of Mxxxx or any of its subsidiaries, or to compel MITC, Mxxxx or any of their respective subsidiaries to dispose of or hold separate any portion of the businesses or assets of Mxxxx or any of its subsidiaries;
(biii) since a Material Adverse Effect on Mxxxx shall have occurred following the execution and delivery of the MITC Merger Agreement that is continuing;
(iv) any representation or warranty of Mxxxx which is qualified by “Material Adverse Effect” or any Specified Company Representation (a) shall not have been true and correct in all respects as of the date of execution of the MITC Merger Agreement or (b) shall not be true and correct in all respects on and as of the Expiration Date (other than those representations and warranties which address matters only as of a particular date), provided, however that for purposes of determining the accuracy of such representations and warranties, any update of or modification to Mxxxx’x Disclosure Letter (as defined in the JOC Merger Agreement) made or purported to have been made after the date of execution of the MITC Merger Agreement shall be disregarded;
(v) any representation or warranty of Mxxxx as to its capital structure (a) shall not have been true and correct in all respects as of the date of execution of the MITC Merger Agreement or (b) shall not be true and correct in all respects on and as of the Expiration Date (other than those representations and warranties which address matters only as of a particular date), there has occurred any effect, change, development, event or circumstance that, individually or other than inaccuracies that would not result in an increase in the aggregateaggregate purchase price being offered in the Offer exceeding 101% of the aggregate purchase price and provided, however, that for purposes of determining the accuracy of such representations and warranties, any update of or modification to Mxxxx’x Disclosure Letter made or purported to have been made after the date of execution of the MITC Merger Agreement shall be disregarded;
(vi) any representation or warranty of Mxxxx in the MITC Merger Agreement (other than those representations and warranties referenced in paragraph (iv) or (v) above) (a) shall not be true and correct in all respects as of the date of execution of the MITC Merger Agreement or (b) shall not be true and correct in all respects on and as of the Expiration Date (other than those representations and warranties which address matters only as of a particular date), which failure to be true and correct, has had or would reasonably be expected to have a Company Material Adverse Effect;
(c) any of the representations and warranties of the Company: (i) relating to the Company’s capitalization shall not be true and correct in all material respects as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date shall be true and correct in all material respects as of such specified date) (solely for purposes of clause (i)have, material shall mean $1,000,000); and (ii) set forth in the Merger Agreement (other than those representations and warranties referred to in clause (i) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, are not be true and correct in each case as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date must be true and correct in all respects as of such specified date), except in the case of this clause (ii) for such failures to be true and correct as either individually or in the aggregate, has not had a Material Adverse Effect on Mxxxx, provided, however, that for purposes of determining the accuracy of such representations and would not reasonably be expected warranties, any update of or modification to Mxxxx'x Disclosure Letter made or purported to have a Company Material Adverse Effect; 43 Table been made after the date of Contentsexecution of the MITC Merger Agreement shall be disregarded;
(dvii) the Company has breached Mxxxx shall have failed to perform in all material respects any obligations or failed, to have complied in any material respect, to perform or to comply respects with any agreement covenants or covenant other agreements of Mxxxx to be performed or complied with by it under the MITC Merger Agreement at or prior to the date of determination;
(e) Parent and Purchaser have not received a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf of the Company that the conditions set forth in clauses (b), (c) and (d) of paragraph (ii) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the failure to obtain such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect;
(g) the Company has entered into a definitive agreement or agreement in principal with any Person with respect to a Company Acquisition Proposal;
(h) the Company Board of Directors has made a Recommendation WithdrawalAgreement; or
(iviii) the MITC Merger Agreement has shall have been terminated in accordance with its terms. These The foregoing conditions are for the sole benefit of Parent and Purchaser and MITC and, regardless of the circumstances, may be waived asserted by Parent or Purchaser, MITC in whole or in part at any applicable time and or from time to time in prior to the sole discretion Expiration Date, except that the conditions relating to receipt of any approvals from any Governmental Authority may be asserted at any time prior to the acceptance for payment of Shares, and all conditions (except for the Minimum Tender Condition) may be waived by Parent or PurchaserPurchaser in its discretion in whole or in part at any applicable time or from time to time, subject in each case subject to the terms and conditions of the MITC Merger Agreement (except for any condition that may only be waived with and the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”)applicable rules and regulations of the SEC. The failure by of Parent or Purchaser at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any such right and, and each such right will shall be deemed an ongoing right which that may be asserted at any time and from time to time.
Appears in 1 contract
Samples: Offer to Purchase (MIT Capital Inc.)
Conditions of the Offer. The For purposes of this Section 15, capitalized terms used but not defined in this Section 15 and defined in the Merger Agreement provides that have the meanings set forth in the Merger Agreement, a copy of which is filed as Exhibit (d)(1) to the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not withdrawn) pursuant to the Offer is subject to the satisfaction of the Minimum Tender Condition and the other conditions below. The Offer is not subject to any financing condition. Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(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, for any Shares tendered pursuant to the Offer and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the restriction referred to aboveSEC, the payment for, any validly tendered Shares, and (subject to the provisions of the Merger Agreement) may terminate the Offer as to and not accept for payment any Shares not then paid for, unless by tendered Shares: (i) if the expiration of the Offer Merger Agreement has been terminated in accordance with its terms; or (ii) if at one minute past 11:59 p.m. NYC time on any scheduled Expiration Date (as it may be extended in accordance with the Merger Agreement):
(i) or subject to any requirements to extend), the Minimum Tender Condition shall have has not been satisfied; or
(ii) at , or any time on or after the date of the Merger Agreement and prior to the acceptance of Shares, none of the following events shall have occurred other conditions is not satisfied or be continuing(to the extent permitted by applicable law) waived:
(a1) there is any Law waiting period (or order enacted, entered, enforced, promulgated or deemed any extension thereof) under the HSR Act applicable to the Transactions having expired or been terminated; and (2) all consents of, and/or filings with, any Governmental Authority or pursuant to the applicable antitrust laws of Japan and Sweden having been obtained and being in full force and effect and any applicable waiting period with respect thereto having expired, as the case may be (it being understood that any consent will be deemed obtained if the relevant merger control authority (A) has declared that it does not have jurisdiction, or has determined not to exercise its jurisdiction, to review the Transactions, (B) has consented to, approved, or cleared the Transactions or (C) may no longer prohibit the Transactions due to the expiry of all relevant time periods) (the “Antitrust Condition”); • no legal order having been issued by a governmental authority and no applicable law being in effect that would (A) make the Offer or the Merger that prohibits illegal or makes illegal (B) otherwise prevent or prohibit the consummation thereof; Table of the Offer or the Merger;
(b) Contents • since the date of the Merger Agreement, there has not having occurred any effect, change, development, event or circumstance that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse EffectEffect (the “MAE Condition”); • the Company having complied with or performed in all material respects each of the covenants, obligations and agreements it is required to comply with or perform at or prior to the Effective Time (the “Obligations Condition”); • the Merger Agreement not having been terminated in accordance with its terms (the “Termination Condition”);
(c1) any the representation and warranty of the Company set forth in Section 4.11(b) of the Merger Agreement (relating to the absence of a Material Adverse Effect through the date of the Merger Agreement) being true and correct in all respects as of the date of the Merger Agreement, (2) each of the representations and warranties of the Company: Company set forth in Sections 4.01, 4.03 and 4.27 of the Merger Agreement (i) relating to corporate existence and power; corporate authorization and binding nature of the Company’s capitalization shall not be agreement, and the inapplicability of Section 203 of the DGCL) being true and correct in all material respects as of the date consummation of the Offer, as if made at such time, except to the extent such representation or warranty expressly relates to a specific date (in which case on and as of such specific date), (3) the representations and warranties of the Company set forth in Section 4.06(a) of the Merger Agreement (relating to the capitalization of the Company) being true and at all times prior to correct except for de minimis inaccuracies as of the consummation of the Offer Offer, as if made at and as of such time (time, except that to the extent any such representation or warranty that is made as of expressly relates to a specified specific date shall be true (in which case on and correct in all material respects as of such specified specific date) (solely for purposes of clause (i), material shall mean $1,000,000); and (ii4) each of the other representations and warranties of the Company set forth in the Merger Agreement (other than those representations and warranties referred to in clause (i) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, are not be being true and correct in each case as of the date of the Agreement and at all times prior to the consummation of the Offer Offer, as if made at and as of such time (time, except that to the extent any such representation or warranty that is made as of expressly relates to a specified specific date must be true (in which case on and correct in all respects as of such specified specific date), except other than in the case of this clause (ii4) for such failures to be true and correct as either individually or in the aggregate, has that have not had and would not reasonably be expected to have a Company Material Adverse Effect (it being understood that for this purpose all references to the term “Company Material Adverse Effect; 43 Table of Contents” and other qualifications based on the word “material,” set forth in any such representations and warranties will be disregarded) (the “Representations Condition”);
(d1) the Company has breached or failedhaving received and delivered to Biogen and Parent the Company Closing Opinion (as defined in the Tri-Party Agreement), and (2) the Company having delivered an Unqualified Tax Opinion (as defined in any material respect, the TMA) pursuant to perform or to comply Section 7.01(c) of the TMA having been satisfied with any agreement or covenant to be performed or complied with by it under the Merger Agreement at or prior respect to the date Offer Closing (as defined in the Tri-Party Agreement) and the closing pursuant to the terms of determination;
Section 1(h) of the Tri-Party Agreement (e) the “TMA Condition”); and • Parent and Purchaser have not having received from the Company a certificate executed signed by the Company’s Chief Executive Officer and Chief Financial Officer confirming dated the date on behalf of which the Company Offer expires, certifying that the MAE Condition, the Representations Condition and the Obligations Condition and the TMA Condition have been satisfied. The foregoing conditions set forth are in clauses (b)addition to, (c) and (d) not a limitation of, the rights of paragraph (ii) of this Section 15 — “Conditions Parent and Purchaser to extend, terminate or modify the Offer pursuant to the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery terms of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the failure to obtain such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect;
(g) the Company has entered into a definitive agreement or agreement in principal with any Person with respect to a Company Acquisition Proposal;
(h) the Company Board of Directors has made a Recommendation Withdrawal; or
(i) the Merger Agreement has been terminated in accordance with its termsAgreement. These The foregoing conditions are for the sole benefit of Parent and Purchaser and, except for the Minimum Tender Condition and the Termination Condition (which may only be waived with the prior written consent of the Company), may be waived by Parent or Purchaser, Purchaser in whole or in part at any time and from time to time and in the sole discretion of Parent or Purchaser, subject in each case to the terms of the Merger Agreement (except for any condition that may only be waived with the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”)and applicable law. The failure by Parent or Purchaser at any time Any Shares subject to exercise any notices of the foregoing rights will not be deemed a waiver of any such right and, each such right guaranteed delivery will be deemed an ongoing right which may not to be asserted at any time validly tendered for purposes of satisfying the Minimum Tender Condition unless and from time until the Shares are “received” (as such term is defined in Section 251(h)(6)(f) of the DGCL). Any reference in this Section 15 or elsewhere in the Merger Agreement to timea condition or requirement being satisfied will be deemed to be satisfied if such condition or requirement is so waived.
Appears in 1 contract
Samples: Offer to Purchase (Sanofi)
Conditions of the Offer. The Notwithstanding any other term of the Offer or the Merger Agreement provides that the Agreement, Purchaser will not be required to, and Parent will not be required to cause Purchaser to, irrevocably accept for payment purchase or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Purchaser’s 's obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restriction referred to abovesuch rules and regulations, the payment for, for any tendered Shares (i) if the Merger Agreement has been validly tendered Shares, and may terminate the Offer as to any Shares not then paid for, unless by the expiration of the Offer (as it may be extended terminated in accordance with the terms of the Merger Agreement):
(i) the Minimum Condition shall have been satisfied; or
Agreement or (ii) at any time on scheduled Offer Expiration Time, if the Minimum Tender Condition or after the date Termination Condition has not been satisfied. Furthermore, Purchaser will not be required to, and Parent will not be required to cause Purchaser to, irrevocably accept for purchase or, subject as aforesaid, to pay for any Shares not theretofore irrevocably accepted for purchase or paid for if, at the Offer Expiration Time, any of the following additional conditions exist: • any waiting period (or any extension thereof) under the HSR Act applicable to the Transactions has not expired or been terminated and the governmental approvals, consents or authorizations under any other applicable antitrust law required by the Merger Agreement and have not been obtained (the "Antitrust Condition"); • any governmental authority having jurisdiction over any party has issued any judgment, order, injunction, decree, legal restraint or prohibition, or any applicable law shall be in effect, in each case, as of immediately prior to the acceptance of SharesOffer Expiration Time, none of that makes the following events shall have occurred or be continuing:
(a) there is any Law or order enacted, entered, enforced, promulgated or deemed applicable to the Offer or the Merger that prohibits or makes illegal consummation of the Offer or the Merger;
(b) Merger illegal or otherwise prohibited; • since the date of the Merger Agreement, there has occurred been any effect, change, development, event or circumstance that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect;Effect of which the existence or consequences are still continuing as of immediately prior to the Offer Expiration Time; Table of Contents •
(ci) the representation and warranty of the Company relating to the absence of any Company Material Adverse Effect is not true and correct as of the date of the Merger Agreement and as of the consummation of the Offer, as if made at such time, (ii) any of the representations and warranties of the Company: (i) Company relating to the Company’s capitalization shall corporate existence and power, organizational documents, corporate authorization, capitalization, subsidiaries, broker's fees and opinion of financial advisor is not be true and correct in all material respects as of the date of the Merger Agreement and at all times prior to as of the consummation of the Offer as if made at Offer, except to the extent such representation or warranty expressly relates to a specific date (in which case on and as of such time specific date), (iii) the representations and warranties of the Company relating to capital structure are not true and correct except for any inaccuracies that individually or in the aggregate are de minimis as of the date of the Merger Agreement and as of the consummation of the Offer, except to the extent any such representation or warranty that is made as of expressly relates to a specified specific date shall be true (in which case on and correct in all material respects as of such specified specific date) (solely for purposes of clause (i), material shall mean $1,000,000); and (iiiv) each of the other representations and warranties of the Company set forth in the Merger Agreement (other than those representations and warranties referred to in clause (i) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, are is not be true and correct in each case as of the date of the Merger Agreement and at all times prior to as of the consummation of the Offer as if made at and as of such time (Offer, except that to the extent any such representation or warranty that is made as of expressly relates to a specified specific date must be true (in which case on and correct in all respects as of such specified specific date), except other than, in the case of this clause (ii) iv), for such failures to be true and correct as either individually or in the aggregate, has that have not had and or would not reasonably be expected to have a Company Material Adverse Effect; 43 Table of Contents
Effect (d) the Company has breached or failed, in any material respect, to perform or to comply with any agreement or covenant to be performed or complied with by it under the Merger Agreement at or prior being understood that for this purpose all references to the date of determination;
(e) Parent and Purchaser have not received a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf of the Company that the conditions set forth in clauses (b), (c) and (d) of paragraph (ii) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the failure to obtain such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a term "Company Material Adverse Effect;
(g) " and other qualifications based on the word "material," set forth in any such representations and warranties is disregarded); • except as permitted under the Merger Agreement, the Company has entered into a definitive agreement failed to comply with or agreement perform in principal all material respects all covenants, obligations and agreements to be complied with any Person with respect to a Company Acquisition Proposal;
(h) or performed by it; • the Company Board has failed to deliver to Parent and Purchaser a certificate signed by an officer of Directors has made a Recommendation Withdrawalthe Company, dated as of the date of the Offer Expiration Time, certifying that the Offer Conditions specified in the preceding three bullets have been satisfied; or
(i) or • the Merger Agreement has been terminated in accordance with its terms. These The foregoing conditions will be in addition to, and not a limitation of, the rights and obligations of Parent and Purchaser to extend, terminate and/or modify the Offer in accordance with the terms and conditions of the Merger Agreement or applicable law. The foregoing conditions are for the sole benefit of Parent and Purchaser and, subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC, may be waived by Parent or Purchaser, and Purchaser in whole or in part at any time and from time to time in the their sole discretion of Parent or Purchaser, subject in each case to (other than the terms of Minimum Tender Condition and the Merger Agreement (except for any condition that may only be waived with the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”Termination Condition). The failure by Parent or Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and, each such right will be deemed an ongoing right which may be asserted at any time and from time to time.
Appears in 1 contract
Conditions of the Offer. The Merger Agreement provides that the Purchaser will Offer shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’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, subject to the restriction referred to above, the payment for, any validly tendered Shares, and may terminate the Offer conditions other than those substantially described as to any Shares not then paid for, unless by the expiration of the Offer (as it may be extended in accordance with the Merger Agreement):
(i) the Minimum Condition shall have been satisfied; or
(ii) at any time on or after the date of the Merger Agreement and prior to the acceptance of Shares, none of the following events shall have occurred or be continuingfollows:
(a) at the expiry time there is any Law or order enacted, entered, enforced, promulgated or deemed applicable to shall have been validly deposited under the Offer or the Merger that prohibits or makes illegal consummation and not withdrawn a number of Shares which constitutes at least 66 2/3% of the Offer or outstanding Shares (calculated on a Fully Diluted Basis (the Merger"MINIMUM CONDITION"). When used in this Agreement "Fully Diluted Basis" shall exclude any options for which option holders of the Company have agreed to exchange such options into Exchange Options, as contemplated by Section 1.6 of the Agreement;
(b) since the Acquiror shall have determined, acting reasonably, that: (i) no material right, property, franchise or license of the Company or any of its Subsidiaries has been or may be impaired (which impairment has not been cured or waived) or otherwise adversely affected, whether as a result of the making of the Offer, the taking up and paying for Shares deposited under the Offer or otherwise which might make it inadvisable for the Acquiror to proceed with the Offer and/or with the taking up and paying for the Shares under the Offer, and (ii) no covenant, term or condition of any instrument or agreement of the Company or its Subsidiaries not previously disclosed or made available to the Acquiror prior to the date hereof, exists which might make it inadvisable for the Acquiror to proceed with the Offer and/or with the taking up and paying for the Shares under the Offer (including without limitation any default, acceleration or other adverse event that may ensue as a result of the Merger AgreementAcquiror taking up and paying for the Shares under the Offer);
(c) there shall not have occurred, there has occurred developed or come into effect or existence any effectevent, changeaction, developmentstate, event condition or circumstance thatmajor financial occurrence of national or international consequence or any law, individually regulation, action, governmental regulation, inquiry or other occurrence of any nature whatsoever which, in the aggregatejudgment of the Acquiror acting reasonably, has had materially adversely affects or would involves, or may materially adversely affect or involve, the financial condition, business, operations, assets, affairs or prospects of the Company or any of its Subsidiaries or the timing and consummation of the Offer;
(d) any applicable waiting periods under any competition, merger control or similar law (including without limitation the XXXX-XXXXX-XXXXXX ANTITRUST IMPROVEMENTS ACT OF 1976 (United States)), regulation or other governmental authority having jurisdiction over the Acquiror, or the Company or the Offer or any other transaction contemplated by the Offer with respect to any such matters shall have expired or been terminated in respect of such transactions;
(e) no act, action, suit or proceeding shall have been threatened or taken before or by any Canadian or United States federal, provincial, state or foreign court or other tribunal or governmental agency or other regulatory or administrative agency or commission or by any elected or appointed public official or private person (including without limitation any individual, corporation, firm, group or other entity) in Canada, the United States or elsewhere, whether or not having the force of law, and no law, regulation or policy shall have been proposed, enacted, promulgated or applied, whether or not having the force of law, which could reasonably be expected to have a Company Material Adverse Effect;
(c) any of the representations and warranties of the Company: (i) relating to the Company’s capitalization shall not be true and correct in all material respects as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date shall be true and correct in all material respects as of such specified date) (solely for purposes of clause (i), material shall mean $1,000,000); and (ii) set forth in the Merger Agreement (other than those representations and warranties referred to in clause (i) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, are not be true and correct in each case as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date must be true and correct in all respects as of such specified date), except in the case of this clause (ii) for such failures to be true and correct as either individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; 43 Table of Contents
(d) the Company has breached or failed, in any material respect, to perform or to comply with any agreement or covenant to be performed or complied with by it under the Merger Agreement at or prior to the date of determination;
(e) Parent and Purchaser have not received a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf of the Company that the conditions set forth in clauses (b), (c) and (d) of paragraph (ii) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time;of:
(i) making illegal, or otherwise directly or indirectly restraining or prohibiting or making materially more costly the applicable waiting period (and any extension thereof) applicable to making of the Transactions (including Offer, the Offer and acceptance for payment of, payment for, or ownership, directly or indirectly, of some or all of the Merger) under Shares by the HSR Act Acquiror, the completion of a compulsory acquisition or any other Antitrust Law shall not have expired subsequent acquisition transaction or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation of any of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause Offer;
(ii) where prohibiting or materially limiting the failure ownership or operation by the Company or any of its Subsidiaries, or by the Acquiror, directly or indirectly, of all or any material portion of the business or assets of the Company, on a consolidated basis, or the Acquiror, directly or indirectly, or compelling the Acquiror, directly or indirectly, to obtain dispose of or hold separate all or any material portion of the business or assets of the Company, on a consolidated basis, or the Acquiror, directly or indirectly, as a result of the transactions contemplated by the Offer;
(iii) imposing or confirming limitations on the ability of the Acquiror, directly or indirectly, effectively to acquire or hold or to exercise full rights of ownership of the Shares, including without limitation the right to vote any Shares acquired or owned by the Acquiror, directly or indirectly, on all matters properly presented to the Shareholders of the Company, including without limitation the right to vote any shares of capital stock of any Subsidiary (other than immaterial Subsidiaries) directly or indirectly owned by the Company, except as such consentrights may be limited by applicable securities laws and policies;
(iv) requiring divestiture by the Acquiror, permitdirectly or indirectly, notification of any Shares; or
(v) materially adversely affecting the business, financial condition or approval, individually results of operations of the Company and its Subsidiaries taken as a whole or in the aggregate, has value of the Shares to the Acquiror;
(f) there shall not had exist any prohibition at law against the Acquiror making the Offer or taking up and would not reasonably be expected to have a Company Material Adverse Effectpaying for all of the Shares under the Offer or completing any compulsory acquisition or any subsequent acquisition transaction;
(g) there shall not have occurred (or if there shall have occurred prior to the commencement of the Offer and not publicly disclosed, there shall not have been generally disclosed or disclosed to the Acquiror in writing after the commencement of the Offer) any change (or any condition, event or development involving a prospective change) in the business, management, assets, capitalization, financial condition, licenses, permits, rights, privileges or liabilities (including without limitation any contingent liabilities that may arise through outstanding, pending or threatened litigation or otherwise other than as described in Section 2.1.8 of the Agreement), whether contractual or otherwise, of the Company has or any of its Subsidiaries considered as a whole which, in the reasonable opinion of the Acquiror, is materially adverse;
(h) the Director of Investigation and Research appointed under the COMPETITION ACT (Canada) shall not have advised the Acquiror, in writing, that he intends to oppose the acquisition of the Shares or that he shall not have taken, threatened to take or advised the Acquiror that he intends to take proceedings under the merger provisions of Part VIII or under Section 45 of the COMPETITION ACT in respect of the purchase of Shares;
(A) neither the board of directors of the Company nor any committee thereof shall have approved or recommended to the Company's Shareholders any proposal or any other acquisition of Shares other than the Offer, (B) no corporation, partnership, person or other entity or group shall have entered into a definitive agreement or an agreement in principal principle with any Person the Company with respect to a take-over bid (other than the Offer), tender offer or exchange offer, merger, sale of assets, amalgamation, plan of arrangement, reorganization, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction with or involving the Company Acquisition Proposal;or any of its Subsidiaries and (C) neither the board of directors of the Company nor any committee thereof shall have resolved to do any of the foregoing; and
(hj) there shall not have occurred any material breach by the Company Board of Directors has made a Recommendation Withdrawal; or
(i) any of the Merger representations, warranties or covenants of this Agreement has been terminated in accordance with its terms. These conditions are for the sole benefit or any termination of Parent and Purchaser and may be waived by Parent or Purchaser, in whole or in part at any time and from time to time in the sole discretion of Parent or Purchaser, subject in each case this Agreement pursuant to the terms of thereof.
(k) Positron Inc. shall not have repudiated its obligation to tender all the Merger Agreement Shares it beneficially owns, directly or indirectly, pursuant to the Offer or otherwise breached its obligations contained in the intervention hereto; and
(except for l) there shall not have been any condition that may only be waived with amendment to the Company’s consent's existing stock option agreements or senior executive officer employment agreements, except as described set forth in paragraph 1.1(iii) and Section 13 — “The Transaction Documents — The Merger 1.6 of this Agreement — The Offer”). The failure by Parent and no further issuances of stock options shall have taken place on or Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and, each such right will be deemed an ongoing right which may be asserted at any time and from time to time.after July 27,
Appears in 1 contract
Conditions of the Offer. The Merger Agreement provides that Notwithstanding any other term of the Purchaser will Offer or this Agreement, Key shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Purchaser’s Key's obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay forfor any Shares tendered pursuant to the Offer unless there shall have been validly tendered and not withdrawn prior to the expiration of the Offer not less than 9,590,000 Shares. Furthermore, and may delay notwithstanding any other term of the acceptance Offer or this Agreement, Key shall not be required to accept for payment of or, subject as aforesaid, to the restriction referred to above, the pay for any Shares not theretofore accepted for payment or paid for, any validly tendered Shares, and may terminate the Offer as to any Shares not then paid forif, unless by the expiration of the Offer (as it may be extended in accordance with the Merger Agreement):
(i) the Minimum Condition shall have been satisfied; or
(ii) at any time on or after the date of the Merger this Agreement and prior to before the acceptance of Sharessuch Shares for payment or the payment therefor, none any of the following events shall have occurred conditions exists (other than as a result of any action or be continuing:inaction of Key or any of its subsidiaries that constitutes a breach of this Agreement):
(a) there There shall be pending by any governmental entity any suit, action or proceeding (i) challenging the acquisition by Key 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, the Merger Agreement, or seeking to obtain from AMVC or Key any damages that would have a Material Adverse Effect on AMVC or Key, (ii) seeking to prohibit or materially limit the ownership or operation of AMVC by Key or its subsidiaries or to compel AMVC or Key to dispose of or hold separate any material portion of the business or assets of AMVC or Key and their respective subsidiaries, taken as a whole, as a result of the Offer or any of the other transactions contemplated by this Agreement or the Merger Agreement, (iii) seeking to impose material limitations on the ability of Key to acquire or hold, or exercise full rights of ownership of, any Shares to be accepted for payment pursuant to the Offer, including the right to vote such shares on all matters properly presented to the shareholders of AMVC, (iv) seeking to prohibit Key or any of its subsidiaries from effectively controlling in any material respect any material portion of the business or operations of AMVC and its subsidiaries or (v) which otherwise is any Law or order reasonably likely to have a Material Adverse Effect on AMVC.
(b) There shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer or the Merger by any Governmental Entity any statute, rule, regulation, judgment, order or injunction, that prohibits is reasonably likely to result, directly or makes illegal consummation indirectly, in any of the consequences referred to in clauses (i) through (v) of paragraph (a) above.
(i) The Board of Directors of AMVC or any committee thereof shall have withdrawn or modified in a manner adverse to Key its approval or recommendation of the Offer or the Merger or approved or recommended any Superior Proposal or tender offer by a third party, or, upon the request of Key, failed to reaffirm its approval or recommendation of the Offer or the Merger;, (ii) AMVC shall have entered into any agreement with respect to any Superior Proposal, or (iii) the Board of Directors of AMVC or any committee thereof shall have resolved to take any of the foregoing actions.
(bd) since the date Any of the representations and warranties of AMVC set forth in the Merger AgreementAgreement shall not be true and correct at the scheduled or extended expiration of the Offer, there has occurred any effect, change, development, event or circumstance thatexcept where the failure of such representations, individually or in the aggregate, has had or would reasonably to be expected to have a Company Material Adverse Effect;
(c) any of the representations and warranties of the Company: (i) relating to the Company’s capitalization shall not be so true and correct in all material respects as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of would not have a specified date shall be true and correct in all material respects as of such specified date) (solely for purposes of clause (i), material shall mean $1,000,000); and (ii) set forth in the Merger Agreement (other than those representations and warranties referred to in clause (i) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, are not be true and correct in each case as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date must be true and correct in all respects as of such specified date), except in the case of this clause (ii) for such failures to be true and correct as either individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; 43 Table of ContentsEffect on AMVC.
(de) the Company has breached or failed, AMVC shall have failed to perform in any material respect, to perform respect any material obligation or to comply in any material respect with any material agreement or covenant of AMVC to be performed or complied with by it under this Agreement or the Merger Agreement at or prior to the date of determination;
(e) Parent and Purchaser have not received a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf of the Company that the conditions set forth in clauses (b), (c) and (d) of paragraph (ii) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the failure to obtain such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect;
(g) the Company has entered into a definitive agreement or agreement in principal with any Person with respect to a Company Acquisition Proposal;
(h) the Company Board of Directors has made a Recommendation Withdrawal; or
(i) the Merger Agreement has been terminated in accordance with its terms. These conditions are for the sole benefit of Parent and Purchaser and may be waived by Parent or Purchaser, in whole or in part at any time and from time to time in the sole discretion of Parent or Purchaser, subject in each case to the terms of the Merger Agreement (except for any condition that may only be waived with the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”). The failure by Parent or Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and, each such right will be deemed an ongoing right which may be asserted at any time and from time to timeAgreement.
Appears in 1 contract
Samples: Tender Offer Agreement (Advanced Machine Vision Corp)
Conditions of the Offer. The For the purposes of this Section 13, capitalized terms used but not defined herein have the meanings set forth in the Merger Agreement provides that Agreement. Notwithstanding any other provision of the Offer, but subject to compliance with the terms and conditions of the Merger Agreement, and in addition to (and not in limitation of) the obligations of Purchaser will to extend the Offer pursuant to the terms and conditions of the Merger Agreement, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-l(c14e -(c) promulgated under the Exchange Act (relating to Purchaser’s the obligation of Purchaser to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)), pay forfor any Shares that are validly tendered pursuant to the Offer and not withdrawn prior to the expiration of the Offer, and may delay extend, terminate or amend the acceptance for payment of orOffer, subject in each case, only to the restriction referred extent provided by the Merger Agreement, in the event that, as of immediately prior to abovethe Expiration Time: (A) any waiting period (and extensions thereof) applicable to the transactions contemplated by the Merger Agreement under the HSR Act shall not have expired or been terminated; (B) the Minimum Condition shall not have been satisfied; or (C) any of the following shall have occurred and continue to exist:
(i) any Governmental Authority of competent jurisdiction shall have (i) enacted, the payment for, issued or promulgated any validly tendered Shares, and may terminate the Offer Law that is in effect as of immediately prior to any Shares not then paid for, unless by the expiration of the Offer (as it may be extended in accordance with and has the effect of making the Offer, the acquisition of Shares by Celgene or Purchaser or the Merger Agreement):
illegal or which has the effect of restricting, prohibiting or otherwise preventing the consummation of the Offer, the acquisition of Shares by Celgene or Purchaser or the Merger, or (iii) issued or granted any Order that is in effect as of immediately prior to the Minimum Condition shall have been satisfiedexpiration of the Offer and has the effect of making the Offer, the acquisition of Shares by Celgene or Purchaser or the Merger illegal or which has the effect of restricting, prohibiting or otherwise preventing the consummation of the Offer, the acquisition of Shares by Celgene or Purchaser Sub or the Merger; or
(ii) at any time on or after (a) the date representations and warranties set forth in Section 4.2 of the Merger Agreement (Capitalization) (other than the representations and prior to the acceptance of Shares, none of the following events shall have occurred or be continuing:
(awarranties contained in Section 4.2(a) there is any Law or order enacted, entered, enforced, promulgated or deemed applicable to the Offer or the Merger that prohibits or makes illegal consummation of the Offer or the Merger;
(b) since the date of the Merger Agreement), there has occurred any effect, change, development, event or circumstance that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect;
(c) any and Section 4.3 of the representations and warranties of the Company: Merger Agreement (iCorporate Power; Enforceability) relating to the Company’s capitalization shall not be true and correct in all material respects at and as of the date of the Merger Agreement and at all times prior to the consummation and as of the Offer Expiration Time, as if though made at and as of such time the Expiration Time, (b) the representations and warranties set forth in Section 4.2(a) of the Merger Agreement (Capitalization) shall not be true and correct in all respects (other than in the case of exceptions relating to the outstanding shares of Receptos Common Stock as of July 13, 2015, which would not result in cost, expense or liability to Receptos, Celgene and their Affiliates exceeding $75,000,000 in the aggregate), at and as of the date of the Merger Agreement and at and as of the Expiration Time, as though made at and as of the Expiration Time, and (c) each of the other representations and warranties of Receptos in the Merger Agreement shall not be true and correct in all respects at and as of the date of the Merger Agreement and at and as of the Expiration Time, as though made at and as of the Expiration Time, except (x) in each case, representations and warranties that any such representation or warranty that is are expressly made as of a specified an earlier date shall be true and correct in all material respects only at and as of such specified date, and (y) in the case of subclause (solely for purposes of clause (ic), material shall mean $1,000,000); where the failure of such representations or warranties to be true and correct (ii) set forth in the Merger Agreement (other than those representations and warranties referred to in clause (i) above), without giving effect to any materiality qualification as to “materiality” or “Company Material Adverse Effect” qualifications qualifiers set forth therein) would not, are not be true and correct in each case as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date must be true and correct in all respects as of such specified date), except in the case of this clause (ii) for such failures to be true and correct as either individually or in the aggregate, has not had and would not have or reasonably be expected to have a Company Material Adverse Effect; 43 Table of Contents
(diii) the Company has breached or failed, in any material respect, Receptos shall have failed to perform in all material respects any obligations, agreements or to comply with any agreement or covenant covenants to be performed performed, or complied with with, by it under the Merger Agreement at or prior to the date of determination;Expiration Time;
(eiv) Parent a Company Material Adverse Effect shall have arisen or occurred following the execution and Purchaser have not received a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf delivery of the Company Merger Agreement that is continuing;
(v) the Merger Agreement shall have been terminated in accordance with its terms; or TABLE OF CONTENTS (vi) Receptos shall not have delivered to Celgene a certificate, signed by an executive officer of Receptos, certifying that the conditions set forth in clauses (bC)(ii), (cC)(iii) and (d) of paragraph (iiC)(iv) of this Section 15 13 — “Conditions to of the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the failure to obtain such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect;
(g) the Company has entered into a definitive agreement or agreement in principal with any Person with respect to a Company Acquisition Proposal;
(h) the Company Board of Directors has made a Recommendation Withdrawal; or
(i) the Merger Agreement has been terminated in accordance with its termsduly satisfied. These The foregoing conditions are for the sole benefit of Parent Celgene and Purchaser, may be asserted by Celgene or Purchaser regardless of the circumstances giving rise to such condition and may be waived by Parent Celgene or Purchaser, Purchaser in whole or in part at any time and from time to time in the sole and absolute discretion of Parent Celgene or Purchaser, subject in each case to the terms of the Merger Agreement (except for any condition that may only be waived with the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”)Agreement. The failure by Parent Celgene or Purchaser at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any such right and, each such right will shall be deemed an ongoing right which may be asserted at any time and from time to time.
Appears in 1 contract
Conditions of the Offer. The Merger Agreement provides that Notwithstanding any other provision of the Offer, Purchaser will shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the restriction referred to aboveSEC, the payment for, any validly tendered Company Common Shares, and may amend the Offer consistent with the terms of the Merger Agreement or terminate the Offer as to and not accept for payment any Shares not then paid fortendered Company Common Shares, unless by the expiration of the Offer (as it may be extended in accordance with the Merger Agreement):if:
(i) the Minimum Condition shall not have been satisfiedsatisfied at the time of expiration of the Offer, as it may be extended; or
(ii) at on any time on or after the date scheduled Expiration Date of the Merger Agreement and prior to Offer, as the acceptance of Sharessame may be extended, none any of the following events or circumstances shall occur or exist or shall be reasonably determined by X.X. Xxxxxx or Purchaser to have occurred or be continuingexist:
(a) there is any Law waiting period (and any extension thereof) applicable to the consummation of the Offer and the Merger under the HSR Act shall not have expired or order enacted, entered, enforced, promulgated or deemed been terminated;
(b) any waiting period applicable to the Offer or the Merger that prohibits under any applicable foreign antitrust or makes illegal consummation competition-related legal requirements shall not have expired or been terminated, and any consent required under 27 Table of Contents any applicable foreign antitrust or competition-related legal requirement in connection with the Offer or the MergerMerger shall not have been obtained or not be in full force and effect;
(bc) since the date of the Merger Agreementwith certain exceptions, there has occurred any change, effect, change, developmentresult, event occurrence or circumstance that, individually or in the aggregate, has had state of facts that is or would reasonably be expected to be materially adverse to the business, financial condition, assets, liabilities or results of operations of the Company and its subsidiaries, taken as a whole, or which is or would be reasonably expected to be materially adverse to the ability of the Company to consummate the transactions contemplated in the Merger Agreement (“Company Material Adverse Effect”);
(d) any general suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange or Nasdaq Global Select Market, (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States or any limitation by federal or state authorities on the extension of credit by lending institutions, or a disruption of or material adverse change in either the syndication market for credit facilities or the financial, banking or capital markets that have a disproportionate adverse effect on the Company and its Subsidiaries taken as a whole relative to other industry participants, or (iii) a commencement of war or armed hostilities (other than a continuation of such wars, conflicts or actions in which the United States armed forces were engaged as of the date of the Agreement) directly involving the United States or any other jurisdiction in which the Company or any of the Company’s Subsidiaries has material assets or operations, provided that such action results in a Company Material Adverse EffectEffect or materially or adversely affects or delays the consummation of the Offer;
(ce) any of the representations and warranties of the Company: (i) relating to the Company’s capitalization shall not be true and correct in all material respects as of the date of the Agreement and at all times prior to the consummation of the Offer as if made at and as of such time (except that any such representation or warranty that is made as of a specified date shall be true and correct in all material respects as of such specified date) (solely for purposes of clause (i), material shall mean $1,000,000); and (ii) Company set forth in the Merger Agreement (other than those representations and warranties referred to in clause (i) above), without giving effect to any materiality or “Company Material Adverse Effect” qualifications similar qualification contained therein, are ) shall not be true and correct in each case correct, as of the date of the Merger Agreement and at all times prior or as of a date subsequent to the consummation date of the Offer Merger Agreement as if made at and as on such subsequent date, except to the extent the failure of such time (except that any such representation or warranty that is made as of a specified date must be true representations and correct in all respects as of such specified date), except in the case of this clause (ii) for such failures warranties to be true and correct as either individually (without giving effect to any materiality or similar qualification contained therein), taken together in the aggregatetheir entirety, has not had and would not reasonably be expected to have a Company Material Adverse Effect; 43 Table provided, however, that any such breach capable of Contentsbeing cured has not in fact been cured prior to the initial expiration date of the Offer (or such later date upon which the Offer shall expire in accordance with the Merger Agreement);
(df) the Company has breached or failedshall not have performed and complied, in any all material respectrespects, to perform with each covenant or to comply with any agreement or covenant contained in the Agreement and required to be performed or complied with by it under the Merger Agreement at or prior to the date of determination;
(e) Parent and Purchaser have not received a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf of the Company that the conditions set forth in clauses (b), (c) and (d) of paragraph (ii) of this Section 15 — “Conditions to the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the such failure to obtain such consent, permit, notification or approval, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse EffectEffect and such failure is incapable of being cured or has not been cured during the grace period described in the proviso below; provided, however, if such breach is curable by the Company, then X.X. Xxxxxx may not terminate the Merger Agreement with respect to a particular breach prior to or during the ten business-day period commencing upon delivery by X.X. Xxxxxx of written notice to the Company of such breach, so long as the Company continues to exercise commercially reasonable efforts to cure such breach during such ten business-day period;
(g) any temporary restraining order, preliminary or permanent injunction or other order preventing the Company has entered into consummation of the Offer or the Merger or any of the other transactions contemplated by the Merger Agreement shall be pending or shall have been issued by any court of competent jurisdiction and remain in effect, or there shall be any law enacted or deemed applicable by a definitive agreement governmental entity to the Offer or agreement in principal with the Merger or any Person with respect to a Company Acquisition Proposalof the other transactions contemplated by the Merger Agreement that makes consummation of the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement illegal;
(h) any antitrust regulator or body having decided to take, institute, implement or threaten any action proceeding, suit, investigation, enquiry or reference, or having required any action to be taken or otherwise having done anything or having enacted, made or proposed any statute, regulation, decision, order or change to published practice or there would be outstanding any statute, regulation, decision or order which would or might: • impose any limitation on, or result in a delay in, the ability of X.X. Xxxxxx or Purchaser directly or indirectly to acquire or hold or to exercise effectively all or any rights of ownership in respect of shares or other securities (or the equivalent) in the Company Board or its subsidiaries or on the ability of Directors has made a Recommendation WithdrawalX.X. Xxxxxx directly or indirectly to hold or exercise effectively any rights of ownership in respect of shares or other securities (or the equivalent) in, or to exercise management control over, the Company or any of its subsidiaries, or 28 Table of Contents • require X.X. Xxxxxx, Company or Purchaser to divest any of their respective assets or businesses in connection with the Offer and the Merger or any of the transactions contemplated by the Merger Agreement;
(i) the failure of the Company to obtain any necessary consent to the transactions contemplated by the Merger Agreement required by the contracts with the Company’s vendors identified in writing by X.X. Xxxxxx to the Company on or prior to the date of the Merger Agreement; or
(ij) the Merger Agreement has been terminated in accordance with its terms. These conditions are for the sole benefit of Parent and Purchaser and may be waived by Parent or Purchaser, in whole or in part at any time and from time to time in the sole discretion of Parent or Purchaser, subject in each case to the terms of the Merger Agreement (except for any condition that may only be waived with the Company’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”). The failure by Parent or Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and, each such right will be deemed an ongoing right which may be asserted at any time and from time to time.
Appears in 1 contract
Samples: Merger Agreement (Foster L B Co)
Conditions of the Offer. The For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement provides that have the meanings set forth in the Merger Agreement, a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions below (the “Offer Conditions”). Neither Parent nor Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(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), pay for, and may delay the acceptance for payment of or, subject any Shares tendered pursuant to the restriction referred to aboveOffer if, at the payment for, any validly tendered Shares, and may terminate the Offer as to any Shares not then paid for, unless by the then-scheduled expiration of the Offer (as it may be extended in accordance with the Merger Agreement):
(i) the Minimum Condition shall have been satisfied; or
(ii) at Offer, any time on or after the date of the Merger Agreement and prior to the acceptance of Shares, none of the following events shall conditions have occurred not been satisfied or be continuingwaived in writing by Parent or Purchaser:
(a) the Minimum Condition has been satisfied;
(b) any waiting period (and any extension thereof) applicable to the consummation of the Offer and the Merger under the HSR Act has been terminated or has expired, and any other clearance, approval or consent under any other applicable antitrust law of any governmental authority within any jurisdiction in which Parent or any of its affiliates operate their respective businesses or own any assets has been obtained;
(c) none of the following events, conditions, circumstances, state of facts or developments exist or have occurred and are continuing:
(i) any judgment preventing the consummation of the Offer or the Merger has been issued by any governmental authority of competent jurisdiction within any jurisdiction in which Parent or any of its affiliates operate their respective businesses or own any assets and remain in effect, or there is any Law or order enacted, entered, enforced, promulgated law enacted or deemed applicable by any such governmental authority to the Offer or the Merger that prohibits or makes illegal consummation of the Offer or the MergerMerger illegal;
(bii) since any Proceeding has been instituted, pending or threatened in writing by any governmental authority within any jurisdiction in which Parent or any of its affiliates operate their respective businesses or own any assets seeking (1) a Non-Required Remedy or (2) to enjoin, make illegal or otherwise prohibit the date consummation of the Offer of the Merger Agreement(the conditions set forth in (b), there has occurred any effect(c)(i) and (c)(ii) above, change, development, event or circumstance that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect“Antitrust and Judgment/Illegality Conditions”);
(ciii) Pandion and Parent have agreed in writing that the Offer or the Merger Agreement be terminated, or the Merger Agreement has been terminated in accordance with its terms;
(iv) (1) any of the representations and warranties of Pandion set forth in Section 5.1 (Organization), clauses (a) and (b)(i) of Section 5.3 (Authorization; No Conflict), Section 5.4 (Subsidiaries), Section 5.10 (Broker’s or Finder’s Fees), Section 5.13 (Opinion of Financial Advisor) or Section 5.23 (Takeover Provisions) of the Company: (i) relating to the Company’s capitalization shall Merger Agreement are not be true and correct in all material respects as of the date February 24, 2021 and as of the Agreement and at all times prior to the consummation of the Offer Expiration Date as if though made at on and as of such time date (except that any such representation or warranty that is to the extent expressly made as of a specified date shall be an earlier date, in which case as of such earlier date), (2) any of the representations and warranties of Pandion set forth in Section 5.2 (Capitalization) of the Merger Agreement are not true and correct in all material respects (other than de minimis inaccuracies) as of February 24, 2021 and as of the Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (3) any of the representations and warranties of Pandion set forth in clause (a) of Section 5.7 (Absence of Material Adverse Effect) of the Merger Agreement are not true and Table of Contents correct in all respects as of February 24, 2021 and as of the Expiration Date as though made on and as of such specified date (except to the extent expressly made as of an earlier date, in which case as of such earlier date) or (solely for purposes 4) any representations and warranties of clause (i), material shall mean $1,000,000); and (ii) Pandion set forth in the Merger Agreement (other than those representations and warranties referred to listed in clause the preceding clauses (i) above1), (2) or (3) of this (iv)) are not true and correct (without giving effect to any materiality limitation on any representation or warranty indicated by the words “Company Material Adverse Effect,” qualifications therein“in all material respects,” “in any material respect,” “material” or “materially”) as of February 24, are not be true 2021 and correct in each case as of the date of the Agreement and at all times prior to the consummation of the Offer Expiration Date as if though made at on and as of such time date (except that any such representation or warranty that is to the extent expressly made as of a specified date must be true and correct an earlier date, in all respects which case as of such specified earlier date), except except, in the case of this clause (ii) for 4), where the failure of any such failures representations and warranties to be so true and correct as either would not, and would not be reasonably expected to, have, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; 43 Table of Contents;
(dv) the Company Pandion has breached failed to perform or failed, comply in any material respect, to perform or to comply respect with any obligation, agreement or covenant required to be performed or complied with by it under the Merger Agreement at or prior to the date of determination;Expiration Date and such failure remains uncured; or
(evi) Parent and Purchaser have not received since February 24, 2021, there has occurred any event, condition, change, occurrence or development of a certificate executed by the Company’s Chief Executive Officer and Chief Financial Officer confirming on behalf state of the Company facts that the conditions set forth in clauses (b)has had, (c) and (d) of paragraph (ii) of this Section 15 — “Conditions or would reasonably be expected to the Offer” are duly satisfied immediately prior to the Acceptance Time;
(i) the applicable waiting period (and any extension thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or any other Antitrust Law shall not have expired or has not been terminated and (ii) all other consents, permits, notification and approvals of Governmental Entities in connection with the execution and delivery of the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement shall not have been obtained, except in the case of this clause (ii) where the failure to obtain such consent, permit, notification or approvalhave, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect;
(g) the Company has entered into a definitive agreement or agreement in principal with any Person with respect to a Company Acquisition Proposal;
(h) the Company Board of Directors has made a Recommendation Withdrawal; or
(ix) Xxxxxx has received a certificate signed on behalf of Pandion by the Merger Agreement has been terminated chief executive officer or chief financial officer of Pandion to the effect that none of the conditions in accordance with its terms(c)(iv), (c)(v) and (c)(vi) have occurred and are continuing. These The foregoing conditions are for the sole benefit of Parent and Purchaser, may be asserted by Parent or Purchaser regardless of the circumstances giving rise to any such conditions, and may be waived by Parent or Purchaser, Purchaser in whole or in part at any time and from time to time in their sole discretion; provided that the sole discretion of Parent or Purchaser, subject Minimum Condition and the Antitrust and Judgment/Illegality Conditions (other than the condition in each case to the terms of the Merger Agreement (except for any condition that c)(ii)(1) above which may only be waived by Xxxxxx and Purchaser in their sole discretion) may be waived by Xxxxxx and Purchaser only with the Companyprior written consent of Pandion, which may be granted or withheld in Xxxxxxx’s consent, as described in Section 13 — “The Transaction Documents — The Merger Agreement — The Offer”)sole discretion. The failure by Parent or Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and, and each such right will be deemed an ongoing right which may be asserted at any time and from time to time.
Appears in 1 contract
