Conditions of the Offer. Notwithstanding any other provision of the offer, we will not be required to accept any options tendered for exchange, and we may terminate or amend the offer, or postpone our acceptance and cancellation of any options tendered for exchange, in each case, subject to Rule 13e-4(f)(5) under the Securities Exchange Act of 1934, as amended, if at any time on or after November 19, 2001, and prior to the Expiration Date, any of the following events has occurred, or has been determined by us to have occurred, and, in our reasonable judgment in any case and regardless of the circumstances giving rise to the event, including any action or omission to act by us, the occurrence of such event or events makes it inadvisable for us to proceed with the offer or with such acceptance and cancellation of options tendered for exchange: (a) there shall have been threatened or instituted or be pending any action or proceeding by any government or governmental, regulatory or administrative agency, authority or tribunal that directly or indirectly challenges the making of the offer, the acquisition of some or all of the tendered options pursuant to the offer, or the issuance of New Options, or otherwise relates in any manner to the offer, or that, in our reasonable judgment, could materially and adversely affect our business, condition (financial or other), income, operations or prospects of Agile or our subsidiaries or materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer to Agile; (b) there shall have been any action threatened, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable to the offer or Agile or any of our subsidiaries, by any court or any authority, agency or tribunal that, in our reasonable judgment, would or might directly or indirectly: (i) make the acceptance for exchange of, or issuance of New Options for, some or all of the tendered options illegal or otherwise restrict or prohibit consummation of the offer or that otherwise relates in any manner to the offer; (ii) delay or restrict our ability, or render us unable, to accept for exchange, or issue New Options for, some or all of the tendered options; (iii) materially impair the contemplated benefits we hope to receive as a result of the offer as described above in Section 3 ("Purpose of the Offer"); or (iv) materially and adversely affect Agile's business, condition (financial or other), income, operations or prospects or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer to Agile; (c) there shall have occurred: (i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market; (ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory; (iii) the commencement of a war, armed hostilities or other international or national crisis directly or indirectly involving the United States; (iv) any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that in our reasonable judgment might affect, the extension of credit by banks or other lending institutions in the United States; (v) any significant decrease in the market price of the shares of our common stock or any change in the general political, market, economic or financial conditions in the United States or abroad that could, in our reasonable judgment, have a material adverse effect on the business, condition (financial or other), operations or prospects of Agile or our subsidiaries or on the trading of our common stock; (vi) in the case of any of the foregoing existing at the time of the commencement of the offer, a material acceleration or worsening thereof; (vii) any decline in either the Dow Xxxxx Industrial Average, the Nasdaq National Market or the Standard and Poor's Index of 500 Companies by an amount in excess of 10% measured during any time period after the close of business on October 18, 2001, at which time we would promptly notify option holders if we waive this condition or terminate the offer; (d) there has occurred any change in generally accepted accounting standards or the application or interpretation thereof that could or would require us for financial reporting purposes to record compensation expense against our earnings in connection with the offer; (e) a tender or exchange offer with respect to some or all of our common stock, or a merger or acquisition proposal for Agile, shall have been proposed, announced or made by another person or entity or shall have been publicly disclosed, or we shall have learned that: (i) any person, entity or "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act, shall have acquired or proposed to acquire beneficial ownership of more than 5% of the outstanding shares of our common stock, or any new group shall have been formed that beneficially owns more than 5% of the outstanding shares of our common stock, other than any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the Securities and Exchange Commission on or before November 19, 2001; (ii) any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the SEC on or before November 19, 2001 shall have acquired or proposed to acquire beneficial ownership of an additional 2% or more of the outstanding shares of our common stock; (iii) any person, entity or group shall have filed a Notification and Report Form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, or made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of the assets or securities of us or any of our subsidiaries; or (f) any change or changes shall have occurred in Agile's business, condition (financial or other), assets, income, operations, prospects or stock ownership that, in our reasonable judgment, is or may be material to Agile or may materially impair the contemplated benefits of the offer to Agile. The conditions to the offer are for Agile's benefit. We may assert them in our discretion regardless of the circumstances giving rise to them before the expiration date. We may waive them, in whole or in part, at any time and from time to time prior to the expiration date, in our discretion, whether or not we waive any other condition to the offer. Our failure at any time to exercise any of these rights will not be deemed a waiver of any such rights. The waiver of any of these rights with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances. Any determination we make concerning the events described in this Section 7 will be final and binding upon all persons.
Appears in 2 contracts
Samples: Offer to Exchange Options (Agile Software Corp), Offer to Exchange Options (Agile Software Corp)
Conditions of the Offer. Notwithstanding any other provision of the offerOffer, we will not be required to accept any options tendered for exchangeOriginal Warrants, and we may terminate or amend the offerOffer, or postpone our acceptance and cancellation of any options tendered for exchangeOriginal Warrants, in each case, subject to Rule 13e-4(f)(5) under the Securities Exchange Act of 1934, as amendedAct, if at any time on or after November 19, 2001, the commencement of the Offer and prior to before the Expiration Dateexpiration of the Offer, any of the following events has occurred, or has been determined by us to have occurred, and, in our reasonable judgment in any case and regardless of the circumstances giving rise to the event, including any action or omission to act by us, the occurrence of such event or events makes it inadvisable for us to proceed with the offer Offer or with such the acceptance and cancellation of options the tendered for exchangeOriginal Warrants:
(a) there shall have been threatened or instituted or be pending any action or proceeding by any government or governmental, regulatory or administrative agency, authority or tribunal or any other person, domestic or foreign, before any court, authority, agency or tribunal that directly or indirectly challenges the making of the offerOffer, the acquisition of some or all of the tendered options pursuant to the offer, or the issuance of New OptionsWarrants, or otherwise relates in any manner to the offer, Offer or that, in our reasonable judgment, could materially and adversely affect our business, condition (financial or otherotherwise), income, operations or prospects of Agile prospects, or our subsidiaries or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer Offer to Agileus;
(b) there shall have been any action threatened, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable to the offer Offer or Agile or any of our subsidiariesus, by any court or any authority, agency or tribunal that, in our reasonable judgment, would or might directly or indirectly:
(i) : · make the acceptance of the Original Warrants tendered for exchange of, or issuance of New Options for, some or all of the tendered options illegal or otherwise restrict or prohibit consummation of the offer Offer or that otherwise relates relate in any manner to the offer;
(ii) Offer; · delay or restrict our ability, or render us unable, to accept for exchange, or issue New Options for, some or all of the Original Warrants tendered options;
(iii) for exchange; · materially impair the contemplated benefits we hope to receive as a result of the offer as described above in Section 3 ("Purpose of the Offer"); or
(iv) or · materially and adversely affect Agile's our business, condition (financial or other), income, operations or prospects prospects, or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer Offer to Agileus, including any position adopted by the SEC that this Offer jeopardizes or invalidates the exemption from the requirement to register securities under the Securities Act upon which we relied when selling the Original Warrants;
(c) there shall have occurred:
(i) : · any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market;
(ii) ; · the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory;
(iii) ; · the commencement of a war, terrorist act, armed hostilities or other international or national crisis directly or indirectly involving the United States;
(iv) ; · any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that in our reasonable judgment might affect, the extension of credit by banks or other lending institutions in the United States;
(v) ; · any significant decrease in the market price of the shares of our common stock or any change in the general political, market, economic or financial conditions in the United States or abroad that could, in our reasonable judgment, have a material adverse effect on the our business, condition (financial or other), operations or prospects of Agile or our subsidiaries or on the trading of in our common stock;
; · any change in the general political, market, economic or financial conditions in the United States or abroad that could have a material adverse effect on our business, condition (vi) financial or other), operations or prospects or that, in our reasonable judgment, makes it inadvisable to proceed with the Offer; or · in the case of any of the foregoing existing at the time of the commencement of the offerOffer, a material acceleration or worsening thereof;
(vii) any decline in either the Dow Xxxxx Industrial Average, the Nasdaq National Market or the Standard and Poor's Index of 500 Companies by an amount in excess of 10% measured during any time period after the close of business on October 18, 2001, at which time we would promptly notify option holders if we waive this condition or terminate the offer;
(d) there has occurred any change in generally accepted accounting standards or the application or interpretation thereof that could or would require us for financial reporting purposes to record compensation expense against our earnings in connection with the offer;
(e) a tender or exchange offer with respect to some or all of our common stock, or a merger or acquisition proposal for Agileus, shall have been proposed, announced or made by another person or entity or shall have been publicly disclosed, or we shall have learned that:
(i) : · any person, entity or "“group" ,” within the meaning of Section 13(d)(3) of the Securities Exchange Act, shall have acquired or proposed to acquire beneficial ownership of more than 5% of the outstanding shares of our common stock, or any new group shall have been formed that beneficially owns more than 5% of the outstanding shares of our common stock, other than any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the Securities and Exchange Commission on or SEC before November 19, 2001;
(ii) the date of this Offer to Exchange; · any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the SEC on or before November 19, 2001 the date of this Offer to Exchange shall have acquired or proposed to acquire beneficial ownership of an additional 2% or more of the outstanding shares of our common stock;
(iii) ; or · any person, entity or group shall have filed a Notification and Report Form under the XxxxHxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, 1976 or made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of the assets or securities of us or any of our subsidiariesus; or
(fe) any change or changes shall have occurred in Agile's our business, condition (financial or other), assets, income, operations, prospects or stock ownership that, in our reasonable judgment, is or may be material to Agile or may materially impair the contemplated benefits of the offer to Agileus. The conditions to the offer Offer are for Agile's our benefit. We may assert them in our discretion regardless of the circumstances giving rise to them before prior to the expiration dateof the Offer. We In addition to the foregoing, we may waive themany of the conditions to the Offer, in whole or in part, at any time and from time to time prior to the expiration dateof the Offer, in our sole discretion, whether or not we waive any other condition to the offerOffer. Our failure at any time to exercise any of these rights will not be deemed a waiver of any such rights. The waiver of any of these rights with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances. Any determination we make concerning the events described in this Section 7 above will be final and binding upon all persons, subject to the judgment of any court of competent jurisdiction to the contrary.
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other provision of the offer, we will not be required to accept any options tendered for exchange, and we may terminate or amend the offer, or postpone our acceptance and cancellation of any options tendered for exchange, in each case, subject to Rule 13e-4(f)(5) under the Securities Exchange Act of 1934, as amended, if at any time on or after November 19May 27, 20012003, and prior to the Expiration Date, any of the following events has occurred, or has been determined by us to have occurred, and, in our reasonable judgment in any case and regardless of the circumstances giving rise to the event, including any action or omission to act by us, the occurrence of such event or events makes it inadvisable for us to proceed with the offer or with such acceptance and cancellation of options tendered for exchange:
(a) there shall have has been threatened or instituted or be is pending any action or proceeding by any government or governmental, regulatory or administrative agency, authority or tribunal that directly or indirectly challenges the making of the offer, the acquisition of some or all of the tendered options pursuant to the offer, or the issuance of New Options, or otherwise relates in any manner to the offer, or that, in our reasonable judgment, could materially and adversely affect our the business, condition (financial or other), income, operations or prospects of Agile XXX or our subsidiaries or materially impair in any way (such as by increasing the contemplated future conduct accounting or other costs of our business or the business of any of our subsidiaries or materially impair offer to XXX) the contemplated benefits of the offer to AgileXXX, as described above in Section 3 ("Purpose of the Offer");
(b) there shall have has been any action threatened, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable to the offer or Agile to XXX or any of our subsidiaries, by any court or any authority, agency or tribunal that, in our reasonable judgment, would or might directly or indirectly:
(i) make the acceptance for exchange of, or issuance of New Options for, some or all of the tendered options illegal or otherwise restrict or prohibit consummation of the offer or that otherwise relates in any manner to the offer;
(ii) delay or restrict our ability, or render us unable, to accept for exchange, or issue New Options for, some or all of the tendered options;
(iii) materially impair (such as by increasing the accounting or other costs of the offer to XXX) the contemplated benefits we hope to receive as a result of the offer as described above in Section 3 ("Purpose of the Offer"); or
(iv) materially and adversely affect Agile's XXX'x business, condition (financial or other), income, operations or prospects or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer to Agileus;
(c) there shall have has occurred:
(i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market;
(ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory;
(iii) the commencement of a war, armed hostilities or other international or national crisis directly or indirectly involving the United States;
(iv) any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that in our reasonable judgment might affect, the extension of credit by banks or other lending institutions in the United States;
(viv) any significant decrease in the market price of the shares of our common stock to a price that is less than 50% of the closing sale price of our common stock on the date of this Offer to Exchange or any change in the general political, market, economic or financial conditions in the United States or abroad that could, in our reasonable judgment, have a material adverse effect on the business, condition (financial or other), operations or prospects of Agile XXX or our subsidiaries or on the trading of in our common stock;
(v) any change in the general political, market, economic or financial conditions in the United States or abroad that could have a material adverse effect on the business, condition (financial or other), operations or prospects of XXX or our subsidiaries or that, in our reasonable judgment, makes it inadvisable to proceed with the offer;
(vi) in the case of any of the foregoing existing at the time of the commencement of the offer, a material acceleration or worsening thereof;; or
(vii) any decline in either the Dow Xxxxx Industrial Average, the Nasdaq National Market Average or the Standard and Poor's Index of 500 Companies by an amount in excess of 10% measured during any time period after prior to the close of business on October 18June 24, 2001, at which time we would promptly notify option holders if we waive this condition or terminate the offer2003;
(d) there has occurred any change in generally accepted accounting standards or the application or interpretation thereof that could or would require us for financial reporting purposes to record compensation expense against our earnings in connection with the offer;
(e) a tender or exchange offer with respect to some or all of our common stock, or a merger or acquisition proposal for AgileXXX, shall have been proposed, announced or made by another person or entity or shall have been publicly disclosed, or we shall have learned that:
(i) any person, entity or "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act, shall have acquired or proposed to acquire beneficial ownership of more than 5% of the outstanding shares of our common stock, or any new group shall have been formed that beneficially owns more than 5% of the outstanding shares of our common stock, other than any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the Securities and Exchange Commission on or before November 19June 24, 20012003;
(ii) any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the SEC on or before November 19June 24, 2001 2003 shall have acquired or proposed to acquire beneficial ownership of an additional 2% or more of the outstanding shares of our common stock;
(iii) any person, entity or group shall have filed a Notification and Report Form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, or made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of the assets or securities of us or any of our subsidiaries; or
(f) any change or changes shall have occurred in Agile's the business, condition (financial or other), assets, income, operations, prospects or stock ownership of XXX or our subsidiaries that, in our reasonable judgment, is material and adverse to XXX or may be material to Agile our subsidiaries or may materially impair the contemplated benefits of the offer to AgileXXX. The conditions to the offer are for Agile's XXX'x benefit. We may assert them in our discretion regardless of the circumstances giving rise to them before the expiration date. We may waive them, in whole or in part, at any time and from time to time prior to the expiration date, in our discretion, whether or not we waive any other condition to the offer. Our failure at any time to exercise any of these rights will not be deemed a waiver of any such rights. The waiver of any of these rights with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances. To the extent that judgment is required to determine whether one of the conditions set forth above has been triggered, we will employ our commercially reasonable judgment in determining whether such condition has been triggered and whether to waive such condition. Any determination we make concerning the events described in this Section 7 will be final and binding upon all persons.
Appears in 1 contract
Samples: Offer to Exchange Options (Axt Inc)
Conditions of the Offer. Notwithstanding any other provision of the offerOffer, we will not be required to accept any options tendered for exchange, and we may terminate or amend the offerOffer, or postpone our acceptance and cancellation of any options tendered for exchange, in each case, subject to Rule 13e-4(f)(5) under the Securities Exchange Act of 1934, as amendedAct, if at any time on or after November 19, 2001, the Commencement Date and prior to the Expiration Date, any of the following events has occurred, or has been determined by us to have occurred, and, in our reasonable judgment in any case and regardless of the circumstances giving rise to the event, including any action or omission to act by us, the occurrence of such event or events makes it inadvisable for us to proceed with the offer Offer or with such acceptance and cancellation of options tendered for exchange:
(a) : there shall have been threatened or instituted or be pending any action or proceeding by any government or governmental, regulatory or administrative agency, agency or authority or tribunal that directly or indirectly challenges the making of the offerOffer, the acquisition of some or all of the tendered options pursuant to the offerOffer, or the issuance of New Optionsnew options, or otherwise relates in any manner to the offerOffer, or that, in our reasonable judgment, could materially and adversely affect our business, condition (financial or other)condition, income, operations or prospects of Agile or our subsidiaries or materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer Offer to Agile;
(b) PCD; there shall have been any action threatened, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable eligible to the offer Offer or Agile or any of our subsidiariesPCD, by any court or any authority, agency or tribunal that, in our reasonable judgment, would or might directly or indirectly:
(i1) make the acceptance for exchange of, or issuance of New Options new options for, some or all of the tendered options illegal or otherwise restrict or prohibit consummation of the offer Offer or that otherwise relates in any manner to the offerOffer;
(ii2) delay or restrict our ability, or render us unable, to accept for exchange, or issue New Options new options for, some or all of the tendered options;
(iii3) materially impair the contemplated benefits we hope to receive as a result of the offer as described above in Section 3 ("Purpose of the Offer")Offer to PCD; or
(iv4) materially and adversely affect AgilePCD's business, condition (financial or other)condition, income, operations or prospects or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer Offer to Agile;
(c) PCD; there shall have occurred:
(i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market;
(ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory;
(iii) the commencement of a war, armed hostilities or other international or national crisis directly or indirectly involving the United States;
(iv) any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that in our reasonable judgment might affect, the extension of credit by banks or other lending institutions in the United States;
(v) any significant decrease in the market price of the shares of our common stock or any change in the general political, market, economic or financial conditions in the United States or abroad that could, in our reasonable judgment, have a material adverse effect on the business, condition (financial or other), operations or prospects of Agile or our subsidiaries or on the trading of our common stock;
(vi) in the case of any of the foregoing existing at the time of the commencement of the offer, a material acceleration or worsening thereof;
(vii) any decline in either the Dow Xxxxx Industrial Average, the Nasdaq National Market or the Standard and Poor's Index of 500 Companies by an amount in excess of 10% measured during any time period after the close of business on October 18, 2001, at which time we would promptly notify option holders if we waive this condition or terminate the offer;
(d) there has occurred any change change, development, clarification or position taken in generally accepted accounting standards or the application or interpretation thereof that could or would require us for financial reporting purposes to record compensation expense against our earnings in connection with the offer;
(e) Offer for financial reporting purposes; a tender or exchange offer with respect to Offer for some or all of our common stockshares, or a merger or acquisition proposal for AgilePCD, shall have been proposed, announced or made by another person or entity or shall have been publicly disclosed, ; or we shall have learned that:
(i) any person, entity or "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act, shall have acquired or proposed to acquire beneficial ownership of more than 5% of the outstanding shares of our common stock, or any new group shall have been formed that beneficially owns more than 5% of the outstanding shares of our common stock, other than any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the Securities and Exchange Commission on or before November 19, 2001;
(ii) any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the SEC on or before November 19, 2001 shall have acquired or proposed to acquire beneficial ownership of an additional 2% or more of the outstanding shares of our common stock;
(iii) any person, entity or group shall have filed a Notification and Report Form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, or made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of the assets or securities of us or any of our subsidiaries; or
(f) any change or changes shall have occurred in AgilePCD's business, condition (financial or other)condition, assets, income, operations, prospects or stock ownership that, in our reasonable judgment, is or may be material to Agile PCD or may materially impair the contemplated benefits of the offer Offer to AgilePCD. The conditions to the offer Offer are for AgilePCD's benefit. We may assert them in our discretion regardless of the circumstances giving rise to them before the expiration dateExpiration Date. We may waive them, in whole or in part, at any time and from time to time prior to the expiration dateExpiration Date, in our discretion, whether or not we waive any other condition to the offerOffer. Our failure at any time to exercise any of these rights will not be deemed a waiver of any such rights. The waiver of any of these rights with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances. Any determination we make concerning the events described in this Section 7 will be final and binding upon all persons.
Appears in 1 contract
Samples: Offer to Exchange Options (PCD Inc)
Conditions of the Offer. Notwithstanding any other provision of the offer, we We will not be required to accept any options Options tendered for exchangeto us, and we may terminate or amend the offer, Offer or postpone our acceptance and cancellation of any options Options tendered for exchangeto us, in each case, subject to Rule 13e-4(f)(5) under the Securities Exchange Act of 1934, as amended, if at any time on or after November 1925, 20012008, and prior to before the Expiration Date, any of the following events has occurred, or has been reasonably determined by us to have occurred, occurred and, in our reasonable judgment in any such case and regardless of the circumstances giving rise to the event, thereto (including any action or omission to act by us), the occurrence of such event or events makes it inadvisable for us to proceed with the offer Offer or with such our acceptance and cancellation of options the Options tendered for exchangeto us:
(a) there shall have been threatened or instituted or be pending any action or proceeding by any government or governmental, regulatory or administrative agency, authority or tribunal or by any other person, domestic or foreign, before any court, authority, agency or tribunal that directly or indirectly challenges the making of the offerOffer, the acquisition amendment of the existing exercise price in effect and/or subsequent repurchase for some or all of the tendered options 409A Options pursuant to the offer, or the issuance of New OptionsOffer, or otherwise relates in any manner to the offer, Offer or that, in our reasonable judgment, could materially and adversely affect our business, condition (financial or other), incomeoperating results, operations or prospects of Agile prospects, or our subsidiaries or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer Offer to Agileus;
(b) there shall have been any action threatened, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable to the offer Offer or Agile us or any of our subsidiaries, by any court or any authority, agency or tribunal that, in our reasonable judgment, would or might directly or indirectly:
(i) : · make the acceptance for exchange of, or issuance of New Options for, some or all amendment and/or the cancellation and purchase of the tendered options Options illegal or otherwise restrict or prohibit consummation of the offer Offer or that otherwise relates in any manner to the offer;
(ii) Offer; · delay or restrict our ability, or render us unable, to accept for exchange, or issue New Options for, some or all of the tendered options;
(iii) Options; · materially impair the contemplated benefits we hope to receive convey as a result of the offer Offer, that we believe would occur only as described above in a result of further changes to Section 3 ("Purpose of 409A or other tax laws that would affect the Offer")Offer or the 409A Options; or
(iv) or · materially and adversely affect Agile's our business, condition (financial or other), incomeoperating results, operations or prospects or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer to Agilesubsidiaries;
(c) there shall have occurred:
(i) : · any general suspension of trading in, or limitation on prices for, our securities on any national securities exchange or in the over-the-counter market;
(ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory;
(iii) the commencement of a war, armed hostilities or other international or national crisis directly or indirectly involving the United States;
(iv) any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that in our reasonable judgment might affect, the extension of credit by banks or other lending institutions in the United States;
(v) ; · any significant decrease change in the market price of the shares of our common stock or any change in the general political, market, economic or financial conditions in the United States or abroad that could, in our reasonable judgment, have a material adverse effect on the our business, condition (financial or other), operating results, operations or prospects of Agile or our subsidiaries or on the trading of in our common stock;
(vi) , or that, in our reasonable judgment, makes it inadvisable to proceed with the Offer; · in the case of any of the foregoing existing at the time of the commencement of the offerOffer, a material acceleration or worsening thereof;
(vii) any decline in either the Dow Xxxxx Industrial Average, the Nasdaq National Market or the Standard and Poor's Index of 500 Companies by an amount in excess of 10% measured during any time period after the close of business on October 18, 2001, at which time we would promptly notify option holders if we waive this condition or terminate the offer;
(d) there has shall have occurred any change in generally accepted accounting standards or the application or interpretation thereof that could or would require us for financial reporting purposes to record compensation expense expenses against our earnings operating results in connection with the offerOffer that would be in excess of any compensation expenses that we would be required to record under generally accepted accounting standards in effect at the time we commence the Offer;
(e) a tender or exchange offer with respect to some or all of our outstanding common stock, or a merger or acquisition proposal for Agileus, shall have been proposed, announced or made by another person or entity or shall have been publicly disclosed, or we shall have learned that:
(i) : · any person, entity or "“group" ,” within the meaning of Section 13(d)(3) of the Securities Exchange 1934 Act, shall have acquired or proposed to acquire beneficial ownership of more than 5% of the outstanding shares of our common stock, or any new group shall have been formed that beneficially owns more than 5% of the outstanding shares of our common stock, other than any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the Securities and Exchange Commission on or SEC before November 19December 26, 2001;
(ii) 2008; · any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the SEC on or before November 19December 26, 2001 2008 shall have acquired or proposed to acquire beneficial ownership of an additional 2% or more of the outstanding shares of our common stock;
(iii) ; or · any person, entity or group shall have filed a Notification and Report Form under the XxxxHxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, 1976 or made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of the assets or securities of us or any of our subsidiaries; or;
(f) any change or changes shall have occurred in Agile's our business, condition (financial or other), assets, incomeoperating results, operations, prospects or stock ownership or that of our subsidiaries as a result of unforeseen, extraordinary events beyond our control that, in our reasonable judgment, is or may be material to Agile us or may materially impair our subsidiaries or otherwise makes it inadvisable for us to proceed with the contemplated benefits Offer; or
(g) any rules, regulations or actions by any governmental authority, the Nasdaq Stock Market, or other regulatory or administrative authority of any national securities exchange have been enacted, enforced or deemed applicable to Sonic that makes it inadvisable for us to proceed with the offer to AgileOffer. The conditions to the offer Offer are for Agile's our benefit. We may assert them in our discretion discretion, regardless of the circumstances giving rise to them them, at any time before the expiration dateExpiration Date. We may waive them, in whole or in part, at any time and from time to time prior to before the expiration dateExpiration Date, in our discretion, whether or not we waive any other condition to the offerOffer. Our failure at any time to exercise any of these rights will not be deemed a waiver of any such rights. The waiver of any of these rights with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances. Should we decide to waive any of the material conditions of the Offer, the Offer will remain open for the five (5) business days following the date we announce the waiver. Any determination we make concerning the events described in this Section 7 6 may be challenged by an Optionee only in a court of competent jurisdiction. A non-appealable determination with respect to such matter by a court of competent jurisdiction will be final and binding upon all persons.
Appears in 1 contract
Samples: Offer to Purchase Outstanding Options (Sonic Solutions/Ca/)
Conditions of the Offer. Notwithstanding any other provision of Subject to the offerrules under the Exchange Act, we will not be required to accept any options tendered for exchange, and we the Company may terminate or amend the offeroffer or postpone the acceptance or purchase of, or postpone our acceptance and cancellation of any options tendered for exchangepayment for, in each case, subject to Rule 13e-4(f)(5) under the Securities Exchange Act of 1934, as amendedshares tendered, if at any time on or after November 19, 2001, the commencement of the Offer and prior to before the Expiration Date, Date any of the following events has occurred, have occurred (or has have been determined by us the Company to have occurred, and) that, in our the Company's reasonable judgment in any case and regardless of the circumstances giving rise to the event, event or events (including any action or omission to act by usthe Company), the occurrence of such event or events makes it inadvisable for us to proceed with the offer or with such acceptance and cancellation of options tendered for exchangepayment:
(a1) there shall have has been threatened or instituted or be is pending any action action, suit or proceeding by any government or governmental, regulatory or administrative agency, authority or by any other person, before any court, authority, agency or other tribunal that directly or indirectly: - challenges or seeks to make illegal, or to delay or otherwise directly or indirectly challenges to restrain, prohibit or otherwise affect the making of the offer, the acquisition of some or all of the tendered options shares pursuant to the offer, or the issuance of New Options, offer or otherwise relates in any manner to the offer, ; or that, - in our the Company's reasonable judgment, could materially and adversely affect our the business, condition (financial or otherotherwise), income, operations or prospects of Agile the Company, taken as a whole, or our subsidiaries or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries the Company or materially impair the contemplated benefits of the offer to Agilethe Company;
(b2) there shall have has been any action threatened, pending or taken, including any settlement, or any approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, invoked, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable to the offer or Agile or the Company, including any of our subsidiariessettlement, by any court court, government or any governmental, regulatory or administrative authority, agency or tribunal tribunal, that, in our the Company's reasonable judgment, would or might could directly or indirectly:
(i) : - make the acceptance for exchange payment of, or issuance of New Options payment for, some or all of the tendered options shares illegal or otherwise restrict or prohibit consummation of the offer or that otherwise relates in any manner to the offer;
(ii) ; - delay or restrict our abilitythe ability of the Company, or render us the Company unable, to accept for exchange, payment or issue New Options for, pay for some or all of the tendered options;
(iii) shares; - materially impair the contemplated benefits we hope to receive as a result of the offer as described above in Section 3 ("Purpose of to the Offer")Company; or
(iv) or - materially and adversely affect Agile's the business, condition (financial or otherotherwise), income, operations or prospects of the Company, taken as a whole, or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries the Company or materially impair the contemplated benefits of the offer to Agilethe Company;
(c3) there shall have occurred:
(i) has occurred any of the following: - any general suspension of trading in, or limitation on prices for, securities on any United States national securities exchange or in the over-the-counter market;
(ii) ; - the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory;
(iii) ; - the commencement of a war, armed hostilities or other international or national crisis calamity directly or indirectly involving the United States;
(iv) ; - any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that that, in our the Company's reasonable judgment might judgment, could materially affect, the extension of credit by banks or other lending institutions in the United States;
(v) ; - any significant decrease in the market price of the shares of our common stock or any change changes in the general political, market, economic or financial conditions in the United States or abroad that couldcould have, in our the reasonable judgmentjudgment of the Company, have a material adverse effect on the business, condition (financial or otherotherwise), income, operations or prospects of Agile or our subsidiaries the Company, taken as a whole, or on the trading in the shares or on the proposed financing of our common stock;
(vi) the offer; or - in the case of any of the foregoing existing at the time of the commencement of the offer, a material acceleration or worsening thereof;
(vii) any decline in either the Dow Xxxxx Industrial Average, the Nasdaq National Market or the Standard and Poor's Index of 500 Companies by an amount in excess of 10% measured during any time period after the close of business on October 18, 2001, at which time we would promptly notify option holders if we waive this condition or terminate the offer;
(d) there has occurred any change in generally accepted accounting standards or the application or interpretation thereof that could or would require us for financial reporting purposes to record compensation expense against our earnings in connection with the offer;
(e4) a tender or exchange offer with respect to some for any or all of our common stockthe shares (other than the offer), or a merger any merger, acquisition, business combination or acquisition proposal for Agileother similar transaction with or involving the Company, shall have has been proposed, announced or made by another any person or entity or shall have has been publicly disclosed, or we shall have learned that:
(i) any person, entity or "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act, shall have acquired or proposed to acquire beneficial ownership of more than 5% of the outstanding shares of our common stock, or any new group shall have been formed that beneficially owns more than 5% of the outstanding shares of our common stock, other than any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the Securities and Exchange Commission on or before November 19, 2001;
(ii) any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the SEC on or before November 19, 2001 shall have acquired or proposed to acquire beneficial ownership of an additional 2% or more of the outstanding shares of our common stock;
(iii) any person, entity or group shall have filed a Notification and Report Form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, or made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of the assets or securities of us or any of our subsidiaries; or
(f5) any change or changes shall have occurred in Agile's business, condition (financial or other), assets, income, operations, prospects or stock ownership that, in our reasonable judgment, is or may be material to Agile or may materially impair the contemplated benefits Company determines that the consummation of the offer and the purchase of the shares may cause the shares to Agilebe delisted from the AMEX or to be eligible for deregistration under the Exchange Act. The conditions referred to the offer above are for Agile's benefit. We the sole benefit of the Company and may assert them in our discretion be asserted by the Company regardless of the circumstances (including any action or omission to act by the Company) giving rise to them before any condition, and, other than the expiration date. We condition set forth in (5) above, may waive thembe waived by the Company, in whole or in part, at any time and from time to time prior to the expiration date, in our its reasonable discretion, whether or not we waive any other condition to the offer. Our The Company's failure at any time to exercise any of these the foregoing rights will not be deemed a waiver of any right, and each such rightsright will be deemed an ongoing right that may be asserted at any time and from time to time. The waiver of In certain circumstances, if the Company waives any of these rights with respect the conditions described above, it may be required to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstancesextend the Expiration Date. Any determination we make by the Company concerning the events described in this Section 7 above will be final and binding upon on all personsparties.
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other provision of the offer, we will not be required to accept any options tendered for exchange, and we may terminate or amend the offer, or postpone our acceptance and cancellation of any options tendered for exchange, in each case, subject to Rule 13e-4(f)(5) under the Securities Exchange Act of 1934, as amended, if at any time on or after November 19, 2001, and prior to the Expiration Date, any of the following events has occurred, or has been determined by us to have occurred, and, in our reasonable judgment in any case and regardless of the circumstances giving rise to the event, including any action or omission to act by us, the occurrence of such event or events makes it inadvisable for us to proceed with the offer or with such acceptance and cancellation of options tendered for exchange:
(a) there shall have been threatened or instituted or be pending any action or proceeding by any government or governmental, regulatory or administrative agency, authority or tribunal that directly or indirectly challenges the making of the offer, the acquisition of some or all of the tendered options pursuant to the offer, or the issuance of New Options, or otherwise relates in any manner to the offer, or that, in our reasonable judgment, could materially and adversely affect our business, condition (financial or other), income, operations or prospects of Agile or our subsidiaries or materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer to Agile;
(b) there shall have been any action threatened, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable to the offer or Agile or any of our subsidiaries, by any court or any authority, agency or tribunal that, in our reasonable judgment, would or might directly or indirectly:
(i) make the acceptance for exchange of, or issuance of New Options for, some or all of the tendered options illegal or otherwise restrict or prohibit consummation of the offer or that otherwise relates in any manner to the offer;
(ii) delay or restrict our ability, or render us unable, to accept for exchange, or issue New Options for, some or all of the tendered options;
(iii) materially impair the contemplated benefits we hope to receive as a result of the offer as described above in Section 3 ("Purpose of the Offer")offer; or
(iv) materially and adversely affect Agile's business, condition (financial or other), income, operations or prospects or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer to Agile;
(c) there shall have occurred:
(i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market;
(ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory;
(iii) the commencement of a war, armed hostilities or other international or national crisis directly or indirectly involving the United States;
(iv) any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that in our reasonable judgment might affect, the extension of credit by banks or other lending institutions in the United States;
(v) any significant decrease in the market price of the shares of our common stock or any change in the general political, market, economic or financial conditions in the United States or abroad that could, in our reasonable judgment, have a material adverse effect on the business, condition (financial or other), operations or prospects of Agile or our subsidiaries or on the trading of our common stock;
(vi) in the case of any of the foregoing existing at the time of the commencement of the offer, a material acceleration or worsening thereof;
(vii) any decline in either the Dow Xxxxx Industrial Average, the Nasdaq National Market or the Standard and Poor's Index of 500 Companies by an amount in excess of 10% measured during any time period after the close of business on October 18, 2001, at which time we would promptly notify option holders if we waive this condition or terminate the offer;
(d) there has occurred any change in generally accepted accounting standards or the application or interpretation thereof that could or would require us for financial reporting purposes to record compensation expense against our earnings in connection with the offer;
(e) a tender or exchange offer with respect to some or all of our common stock, or a merger or acquisition proposal for Agile, shall have been proposed, announced or made by another person or entity or shall have been publicly disclosed, or we shall have learned that:
(i) any person, entity or "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act, shall have acquired or proposed to acquire beneficial ownership of more than 5% of the outstanding shares of our common stock, or any new group shall have been formed that beneficially owns more than 5% of the outstanding shares of our common stock, other than any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the Securities and Exchange Commission on or before November 19, 2001;
(ii) any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the SEC on or before November 19, 2001 shall have acquired or proposed to acquire beneficial ownership of an additional 2% or more of the outstanding shares of our common stock;
(iii) any person, entity or group shall have filed a Notification and Report Form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, or made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of the assets or securities of us or any of our subsidiaries; or
(f) any change or changes shall have occurred in Agile's business, condition (financial or other), assets, income, operations, prospects or stock ownership that, in our reasonable judgment, is or may be material to Agile or may materially impair the contemplated benefits of the offer to Agile. The conditions to the offer are for Agile's benefit. We may assert them in our discretion regardless of the circumstances giving rise to them before the expiration date. We may waive them, in whole or in part, at any time and from time to time prior to the expiration date, in our discretion, whether or not we waive any other condition to the offer. Our failure at any time to exercise any of these rights will not be deemed a waiver of any such rights. The waiver of any of these rights with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances. Any determination we make concerning the events described in this Section 7 will be final and binding upon all persons.
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other provision of the offer, we will not be required to accept any options tendered for exchange, and we may terminate or amend the offer, or postpone our acceptance and cancellation of any options tendered for exchange, in each case, subject to Rule 13e-4(f)(5) under the Securities Exchange Act of 1934, as amended, if at any time on or after November 19May 27, 20012003, and prior to the Expiration Date, any of the following events has occurred, or has been determined by us to have occurred, and, in our reasonable judgment in any case and regardless of the circumstances giving rise to the event, including any action or omission to act by us, the occurrence of such event or events makes it inadvisable for us to proceed with the offer or with such acceptance and cancellation of options tendered for exchange:
(a) there shall have has been threatened or instituted or be is pending any action or proceeding by any government or governmental, regulatory or administrative agency, authority or tribunal that directly or indirectly challenges the making of the offer, the acquisition of some or all of the tendered options pursuant to the offer, or the issuance of New Options, or otherwise relates in any manner to the offer, or that, in our reasonable judgment, could materially and adversely affect our the business, condition (financial or other), income, operations or prospects of Agile XXX or our subsidiaries or materially impair in any way (such as by increasing the contemplated future conduct accounting or other costs of our business or the business of any of our subsidiaries or materially impair offer to XXX) the contemplated benefits of the offer to AgileXXX, as described above in Section 3 ("Purpose of the Offer");
(b) there shall have has been any action threatened, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable to the offer or Agile to XXX or any of our subsidiaries, by any court or any authority, agency or tribunal that, in our reasonable judgment, would or might directly or indirectly:
(i) make the acceptance for exchange of, or issuance of New Options for, some or all of the tendered options illegal or otherwise restrict or prohibit consummation of the offer or that otherwise relates in any manner to the offer;
(ii) delay or restrict our ability, or render us unable, to accept for exchange, or issue New Options for, some or all of the tendered options;
(iii) materially impair (such as by increasing the accounting or other costs of the offer to XXX) the contemplated benefits we hope to receive as a result of the offer as described above in Section 3 ("Purpose of the Offer"); or
(iv) materially and adversely affect Agile's XXX'x business, condition (financial or other), income, operations or prospects or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer to Agileus;
(c) there shall have has occurred:
(i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market;
(ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory;
(iii) the commencement of a war, armed hostilities or other international or national crisis directly or indirectly involving the United States;
(iv) any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that in our reasonable judgment might affect, the extension of credit by banks or other lending institutions in the United States;
(viv) any significant decrease in the market price of the shares of our common stock to a price that is less than 50% of the closing sale price of our common stock on the date of this Offer to Exchange or any change in the general political, market, economic or financial conditions in the United States or abroad that could, in our reasonable judgment, have a material adverse effect on the business, condition (financial or other), operations or prospects of Agile XXX or our subsidiaries or on the trading of in our common stock;
(v) any change in the general political, market, economic or financial conditions in the United States or abroad that could have a material adverse effect on the business, condition (financial or other), operations or prospects of XXX or our subsidiaries or that, in our reasonable judgment, makes it inadvisable to proceed with the offer;
(vi) in the case of any of the foregoing existing at the time of the commencement of the offer, a material acceleration or worsening thereof;; or
(vii) any decline in either the Dow Xxxxx Industrial Average, the Nasdaq National Market Average or the Standard and Poor's Index of 500 Companies by an amount in excess of 10% measured during any time period after prior to the close of business on October 18June 24, 2001, at which time we would promptly notify option holders if we waive this condition or terminate the offer2003;
(d) there has occurred any change in generally accepted accounting standards or the application or interpretation thereof that could or would require us for financial reporting purposes to record compensation expense against our earnings in connection with the offer;
(e) a tender or exchange offer with respect to some or all of our common stock, or a merger or acquisition proposal for AgileXXX, shall have been proposed, announced or made by another person or entity or shall have been publicly disclosed, or we shall have learned that:
(i) any person, entity or "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act, shall have acquired or proposed to acquire beneficial ownership of more than 5% of the outstanding shares of our common stock, or any new group shall have been formed that beneficially owns more than 5% of the outstanding shares of our common stock, other than any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the Securities and Exchange Commission on or before November 19June 24, 20012003;
(ii) any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the SEC on or before November 19June 24, 2001 2003 shall have acquired or proposed to acquire beneficial ownership of an additional 2% or more of the outstanding shares of our common stock;
(iii) any person, entity or group shall have filed a Notification and Report Form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, or made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of the assets or securities of us or any of our subsidiaries; or
(f) any change or changes shall have occurred in Agile's the business, condition (financial or other), assets, income, operations, prospects or stock ownership of XXX or our subsidiaries that, in our reasonable judgment, is material and adverse to XXX or may be material to Agile our subsidiaries or may materially impair the contemplated benefits of the offer to AgileXXX. The conditions to the offer are for Agile's XXX'x benefit. We may assert them in our discretion regardless of the circumstances giving rise to them before the expiration date. We may waive them, in whole or in part, at any time and from time to time prior to the expiration date, in our discretion, whether or not we waive any other condition to the offer. Our failure at any time to exercise any of these rights will not be deemed a waiver of any such rights. The waiver of any of these rights with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances. Any determination we make concerning the events described in this Section 7 will be final and binding upon all persons.
Appears in 1 contract
Samples: Offer to Exchange Options (Axt Inc)
Conditions of the Offer. Change of Circumstances. Notwithstanding any other provision of the offer, we will not be required to accept for payment or pay for any options tendered for exchangeshares tendered, and we may terminate or amend the offer, or postpone our acceptance and cancellation of any options tendered for exchange, in each casemay postpone, subject to Rule 13e-4(f)(5) under the Securities requirements of the Exchange Act for prompt payment for or return of 1934shares tendered, as amendedthe acceptance for payment of shares tendered, if at any time on after September 27, 2002 and at or after November 19, 2001, and prior to before the Expiration Datetime when we have accepted for payment all shares validly tendered, any of the following events has occurred, or has been determined by us to shall have occurred, and, in our reasonable judgment in any case and regardless of the circumstances giving rise to the event, including any action or omission to act by us, the occurrence of such event or events makes it inadvisable for us to proceed with the offer or with such acceptance and cancellation of options tendered for exchange:
(a) there shall have been threatened or threatened, instituted or be pending any action or proceeding by any government or governmental, regulatory or administrative agency, agency or authority or tribunal or any other person, domestic or foreign, or before any court, authority, agency or tribunal that directly or indirectly (i) challenges the making of the offer, the acquisition of some or all of the tendered options shares pursuant to the offer, or the issuance of New Options, offer or otherwise relates in any manner relates to or affects the offer, offer or that, (ii) in our reasonable judgment, could materially and adversely affect our the business, condition (condition, financial or other), income, operations or prospects of Agile the Company and our subsidiaries, taken as a whole, or our subsidiaries or otherwise materially impair in any way the contemplated future conduct of our business or the business of the Company or any of our subsidiaries or materially impair the offer's contemplated benefits of the offer to Agileus;
(b) there shall have been any action threatened, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable to the offer or Agile the Company or any of our subsidiaries, by any court or any legislative body, court, authority, agency or tribunal thatwhich, in our reasonable sole judgment, would or might directly or indirectly:
indirectly (i) make the acceptance for exchange payment of, or issuance of New Options payment for, some or all of the tendered options shares illegal or otherwise restrict or prohibit consummation of the offer or that otherwise relates in any manner to the offer;
, (ii) delay or restrict our ability, ability or render us unable, unable to accept for exchange, payment or issue New Options for, pay for some or all of the tendered options;
shares, (iii) materially impair the contemplated benefits we hope to receive as a result of the offer as described above in Section 3 ("Purpose of to the Offer"); or
Company or (iv) materially and adversely affect Agile's the business, condition (condition, financial or other), income, operations or prospects of the Company and our subsidiaries, taken as a whole, or otherwise materially impair in any way the contemplated future conduct of our business or the business of the Company or any of our subsidiaries or materially impair the contemplated benefits of the offer to Agilesubsidiaries;
(c) it shall have been publicly disclosed or we shall have learned that (i) any person or "group," within the meaning of Section 13(d)(3) of the Exchange Act, has acquired or proposes to acquire beneficial ownership of more than 5% of the outstanding shares whether through the acquisition of stock, the formation of a group, the grant of any option or right, or otherwise, other than as disclosed in a Schedule 13D or 13G on file with the SEC on the date of this Offer to Purchase or (ii) any person or group that on or prior to the date of this Offer to Purchase had filed a Schedule 13D or 13G with the SEC thereafter shall have acquired or shall propose to acquire, whether through the acquisition of stock, the formation of a group, the grant of any option or right, or otherwise, beneficial ownership of additional shares representing 2% or more of the outstanding shares;
(d) there shall have occurred:
occurred (i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market;
, (ii) any significant decline in the market price of the shares or in the general level of market prices of equity securities in the United States or abroad, (iii) any change in the general political, market, economic or financial condition in the United States or abroad that could have a material adverse effect on our business, condition, financial or otherwise, income, operations, prospects or ability to obtain financing generally or the trading in the shares, (iv) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States or any limitation on, or any event which, in our reasonable judgment, might affect the extension of credit by lending institutions in the United States, whether or not mandatory;
(iiiv) the commencement of a war, armed hostilities or other international or national crisis calamity directly or indirectly involving the United States;
(iv) any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that in our reasonable judgment might affect, the extension of credit by banks or other lending institutions in the United States;
(v) any significant decrease in the market price of the shares of our common stock or any change in the general political, market, economic or financial conditions in the United States or abroad that could, in our reasonable judgment, have a material adverse effect on the business, condition (financial or other), operations or prospects of Agile or our subsidiaries or on the trading of our common stock;
(vi) in the case of any of the foregoing existing at the time of the commencement of the offer, in our reasonable judgment, a material acceleration or worsening thereof;
(vii) any decline in either the Dow Xxxxx Industrial Average, the Nasdaq National Market or the Standard and Poor's Index of 500 Companies by an amount in excess of 10% measured during any time period after the close of business on October 18, 2001, at which time we would promptly notify option holders if we waive this condition or terminate the offer;
(d) there has occurred any change in generally accepted accounting standards or the application or interpretation thereof that could or would require us for financial reporting purposes to record compensation expense against our earnings in connection with the offer;
(e) a tender or exchange offer with respect to some or all of our common stockthe shares, other than the offer, or a merger merger, acquisition or acquisition other business combination proposal for Agilethe Company, shall have been proposed, announced or made by another person or entity or shall have been publicly disclosedgroup, or we shall have learned that:
(i) any person, entity or "group" within the meaning of Section 13(d)(313(d) (3) of the Securities Exchange Act, shall have acquired or proposed to acquire beneficial ownership of more than 5% of the outstanding shares of our common stock, or any new group shall have been formed that beneficially owns more than 5% of the outstanding shares of our common stock, other than any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the Securities and Exchange Commission on or before November 19, 2001;
(iif) there shall have occurred any such person, entity event or group events that has filed a Schedule 13D resulted, or Schedule 13G with may in our reasonable judgment result, directly or indirectly, in an actual or threatened change in the SEC on business, condition, financial or before November 19other, 2001 shall have acquired income, operations, stock ownership or proposed to acquire beneficial ownership of an additional 2% or more prospects of the outstanding shares of our common stock;
(iii) any person, entity or group shall have filed a Notification Company and Report Form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, or made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of the assets or securities of us or any of our subsidiaries; or
(fg) any change we shall not have procured the financing for the purchase described in Section 8 and shall not have procured alternative financing on the same or changes shall have occurred in Agile's business, condition (financial or other), assets, income, operations, prospects or stock ownership thatsimilar terms; and, in our reasonable judgment, is such event or events make it undesirable or inadvisable to proceed with the offer or with such acceptance for payment. No Waiver. The foregoing conditions are for the reasonable benefit of the Company and may be material to Agile or may materially impair the contemplated benefits of the offer to Agile. The conditions to the offer are for Agile's benefit. We may assert them in our discretion asserted by us regardless of the circumstances circumstances, including any action or inaction by us, giving rise to them before the expiration date. We any of these conditions, and any such condition may waive thembe waived by us, in whole or in part, at any time and from time to time prior to the expiration date, in our reasonable discretion, whether or not we waive any other condition to . The failure by the offer. Our failure Company at any time to exercise any of these the foregoing rights will shall not be deemed a waiver of any such rights. The waiver of any the right and each of these rights with respect to particular facts and circumstances will not shall be deemed a waiver with respect an ongoing right which may be asserted at any time and from time to any other facts and circumstancestime. Any determination we make by us concerning the events described in this Section 7 above will be final and binding upon on all personsparties. Additional Conditions Related to Public Trading of Non-Tendered Shares. Acceptance of shares validly tendered in the offer is subject to the conditions that, as of the expiration date, and after giving proforma effect to the acceptance of shares validly tendered, the Company would in its good faith reasonable judgment: (1) continue to have at least 300 shareholders of record, determined as provided in Exchange Act Rule 12g5-1; (2) continue to be quoted on the Nasdaq Small Cap Market, and (3) the Company's purchase of shares would not otherwise constitute a "going private" transaction for purposes of Rule 13e-3 of the Securities and Exchange Commission. This condition may not be waived.
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other provision of the offerOffer, we will not be required to accept any options tendered for exchange, and we may terminate or amend the offerOffer, or postpone our acceptance and cancellation of any options tendered for exchange, in each case, subject to Rule 13e-4(f)(5) under the Securities Exchange Act of 1934, as amendedAct, if at any time on or after November 19June 1, 2001, and prior to the Expiration Date, any of the following events has occurred, or has been determined by us to have occurred, and, in our reasonable judgment in any case and regardless of the circumstances giving rise to the event, including any action or omission to act by us, the occurrence of such event or events makes it inadvisable for us to proceed with the offer Offer or with such acceptance and cancellation of options tendered for exchange:
(a) : - there shall have been threatened or instituted or be pending any action or proceeding by any government or governmental, regulatory or administrative agency, agency or authority or tribunal that directly or indirectly challenges the making of the offerOffer, the acquisition of some or all of the tendered options pursuant to the offerOffer, or the issuance of New Options, or otherwise relates in any manner to the offerOffer, or that, in our reasonable judgment, could materially and adversely affect our business, condition (financial or other)condition, income, operations or prospects of Agile or our subsidiaries or materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer Offer to Agile;
(b) New Focus; - there shall have been any action threatened, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable eligible to the offer Offer or Agile or any of our subsidiariesNew Focus, by any court or any authority, agency or tribunal that, in our reasonable judgment, would or might directly or indirectly:
(i1) make the acceptance for exchange of, or issuance of New Options for, some or all of the tendered options illegal or otherwise restrict or prohibit consummation of the offer Offer or that otherwise relates in any manner to the offerOffer;
(ii2) delay or restrict our ability, or render us unable, to accept for exchange, or issue New Options for, some or all of the tendered options;
(iii3) materially impair the contemplated benefits we hope to receive as a result of the offer as described above in Section 3 ("Purpose of the Offer")Offer to New Focus; or
(iv4) materially and adversely affect Agile's New Focus' business, condition (financial or other)condition, income, operations or prospects or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer Offer to Agile;
(c) New Focus; - there shall have occurred:
(i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market;
(ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory;
(iii) the commencement of a war, armed hostilities or other international or national crisis directly or indirectly involving the United States;
(iv) any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that in our reasonable judgment might affect, the extension of credit by banks or other lending institutions in the United States;
(v) any significant decrease in the market price of the shares of our common stock or any change in the general political, market, economic or financial conditions in the United States or abroad that could, in our reasonable judgment, have a material adverse effect on the business, condition (financial or other), operations or prospects of Agile or our subsidiaries or on the trading of our common stock;
(vi) in the case of any of the foregoing existing at the time of the commencement of the offer, a material acceleration or worsening thereof;
(vii) any decline in either the Dow Xxxxx Industrial Average, the Nasdaq National Market or the Standard and Poor's Index of 500 Companies by an amount in excess of 10% measured during any time period after the close of business on October 18, 2001, at which time we would promptly notify option holders if we waive this condition or terminate the offer;
(d) there has occurred any change change, development, clarification or position taken in generally accepted accounting standards or the application or interpretation thereof principles that could or would require us for financial reporting purposes to record additional compensation expense against our earnings in connection with the offer;
(e) Offer for financial reporting purposes; - a tender or exchange offer with respect to Offer for some or all of our common stockshares, or a merger or acquisition proposal for AgileNew Focus, shall have been proposed, announced or made by another person or entity or shall have been publicly disclosed, ; or we shall have learned that:
(i) any person, entity or "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act, shall have acquired or proposed to acquire beneficial ownership of more than 5% of the outstanding shares of our common stock, or any new group shall have been formed that beneficially owns more than 5% of the outstanding shares of our common stock, other than any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the Securities and Exchange Commission on or before November 19, 2001;
(ii) any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the SEC on or before November 19, 2001 shall have acquired or proposed to acquire beneficial ownership of an additional 2% or more of the outstanding shares of our common stock;
(iii) any person, entity or group shall have filed a Notification and Report Form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, or made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of the assets or securities of us or any of our subsidiaries; or
(f) - any change or changes shall have occurred in Agile's New Focus' business, condition (financial or other)condition, assets, income, operations, prospects or stock ownership that, in our reasonable judgment, is or may be material to Agile New Focus or may materially impair the contemplated benefits of the offer Offer to AgileNew Focus. The conditions to the offer Offer are for Agile's New Focus' benefit. We may assert them in our discretion regardless of the circumstances giving rise to them before the expiration dateExpiration Date. We may waive them, in whole or in part, at any time and from time to time prior to the expiration dateExpiration Date, in our discretion, whether or not we waive any other condition to the offerOffer. Our failure at any time to exercise any of these rights will not be deemed a waiver of any such rights. The waiver of any of these rights with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances. Any determination we make concerning the events described in this Section 7 will be final and binding upon all persons.
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other provision of the offerOffer, we will not be required to accept any options tendered for exchangeOriginal Warrants, and we may terminate or amend the offerOffer, or postpone our acceptance and cancellation of any options tendered for exchangeOriginal Warrants, in each case, ,subject to Rule 13e-4(f)(5) under the Securities Exchange Act of 1934, as amendedAct, if at any time on or after November 19, 2001, the commencement of the Offer and prior to before the Expiration Dateexpiration of the Offer, any of the following events has occurred, or has been determined by us to have occurred, and, in our reasonable judgment in any case and regardless of the circumstances giving rise to the event, including any action or omission to act by us, the occurrence of such event or events makes it inadvisable for us to proceed with the offer Offer or with such the acceptance and cancellation of options the tendered for exchangeOriginal Warrants:
(a) there shall have been threatened or instituted or be pending any action or proceeding by any government or governmental, regulatory or administrative agency, authority or tribunal or any other person, domestic or foreign, before any court, authority, agency or tribunal that directly or indirectly challenges the making of the offerOffer, the acquisition of some or all of the tendered options pursuant to the offer, or the issuance of New OptionsWarrants, or otherwise relates in any manner to the offer, Offer or that, in our reasonable judgment, could materially and adversely affect our business, condition (financial or otherotherwise), income, operations or prospects of Agile prospects, or our subsidiaries or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer Offer to Agileus;
(b) there shall have been any action threatened, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable to the offer Offer or Agile or any of our subsidiariesus, by any court or any authority, agency or tribunal that, in our reasonable judgment, would or might directly or indirectly:
(i) : · make the acceptance of the Original Warrants tendered for exchange of, or issuance of New Options for, some or all of the tendered options illegal or otherwise restrict or prohibit consummation of the offer Offer or that otherwise relates relate in any manner to the offer;
(ii) Offer; · delay or restrict our ability, or render us unable, to accept for exchange, or issue New Options for, some or all of the Original Warrants tendered options;
(iii) for exchange; · materially impair the contemplated benefits we hope to receive as a result of the offer as described above in Section 3 ("Purpose of the Offer"); or
(iv) or · materially and adversely affect Agile's our business, condition (financial or other), income, operations or prospects prospects, or otherwise materially impair in any way the contemplated future conduct of our business or the business of any of our subsidiaries or materially impair the contemplated benefits of the offer Offer to Agileus, including any position adopted by the SEC that this Offer jeopardizes or invalidates the exemption from the requirement to register securities under the Securities Act upon which we relied when selling the Original Warrants;
(c) there shall have occurred:
(i) : · any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market;
(ii) ; · the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory;
(iii) ; · the commencement of a war, terrorist act, armed hostilities or other international or national crisis directly or indirectly involving the United States;
(iv) ; · any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that in our reasonable judgment might affect, the extension of credit by banks or other lending institutions in the United States;
(v) ; · any significant decrease in the market price of the shares of our common stock Common Stock or any change in the general political, market, economic or financial conditions in the United States or abroad that could, in our reasonable judgment, have a material adverse effect on the our business, condition (financial or other), operations or prospects of Agile or our subsidiaries or on the trading of in our common stock;
Common Stock; · any change in the general political, market, economic or financial conditions in the United States or abroad that could have a material adverse effect on our business, condition (vi) financial or other), operations or prospects or that, in our reasonable judgment, makes it inadvisable to proceed with the Offer; or · in the case of any of the foregoing existing at the time of the commencement of the offerOffer, a material acceleration or worsening thereof;
(vii) any decline in either the Dow Xxxxx Industrial Average, the Nasdaq National Market or the Standard and Poor's Index of 500 Companies by an amount in excess of 10% measured during any time period after the close of business on October 18, 2001, at which time we would promptly notify option holders if we waive this condition or terminate the offer;
(d) there has occurred any change in generally accepted accounting standards or the application or interpretation thereof that could or would require us for financial reporting purposes to record compensation expense against our earnings in connection with the offer;
(e) a tender or exchange offer with respect to some or all of our common stockCommon Stock, or a merger or acquisition proposal for Agileus, shall have been proposed, announced or made by another person or entity or shall have been publicly disclosed, or we shall have learned that:
(i) : · any person, entity or "“group" ,” within the meaning of Section 13(d)(3) of the Securities Exchange Act, shall have acquired or proposed to acquire beneficial ownership of more than 5% of the outstanding shares of our common stockCommon Stock, or any new group shall have been formed that beneficially owns more than 5% of the outstanding shares of our common stockCommon Stock, other than any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the Securities and Exchange Commission on or SEC before November 19, 2001;
(ii) the date of this Offer to Exchange; · any such person, entity or group that has filed a Schedule 13D or Schedule 13G with the SEC on or before November 19, 2001 the date of this Offer to Exchange shall have acquired or proposed to acquire beneficial ownership of an additional 2% or more of the outstanding shares of our common stock;
(iii) Common Stock; or · any person, entity or group shall have filed a Notification and Report Form under the XxxxHxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, 1976 or made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of the assets or securities of us or any of our subsidiariesus; or
(fe) any change or changes shall have occurred in Agile's our business, condition (financial or other), assets, income, operations, prospects or stock ownership that, in our reasonable judgment, is or may be material to Agile or may materially impair the contemplated benefits of the offer to Agileus. The conditions to the offer Offer are for Agile's our benefit. We may assert them in our discretion regardless of the circumstances giving rise to them before prior to the expiration dateof the Offer. We In addition to the foregoing, we may waive themany of the conditions to the Offer, in whole or in part, at any time and from time to time prior to the expiration dateof the Offer, in our sole discretion, whether or not we waive any other condition to the offerOffer. Our failure at any time to exercise any of these rights will not be deemed a waiver of any such rights. The waiver of any of these rights with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances. Any determination we make concerning the events described in this Section 7 above will be final and binding upon all persons, subject to the judgment of any court of competent jurisdiction to the contrary.
Appears in 1 contract
