Conditions of the Offer. For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement have the meanings set forth in the Merger Agreement, a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions below. Purchaser will not be required to, and Lilly shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the SEC, the payment for, any tendered Shares, and (subject to the provisions of the Merger Agreement) may not accept for payment any tendered Shares if, at the then-scheduled expiration of the Offer, any of the following conditions exist: (i) the Minimum Tender Condition has not been satisfied; (ii) the Antitrust Condition has not been satisfied; (iii) the Legal Restraint Condition has not been satisfied; (iv) (A) certain specified representations or warranties of ARMO set forth in Article III of the Merger Agreement (other than those set forth in Sections 3.01, 3.02(a)-(d), 3.04, 3.08(a), 3.20, 3.22 and 3.23 of the Merger Agreement) shall not be true and correct at and as of the date of the Merger Agreement and as of such time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date), other than for such failures to be true and correct that have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect”), (B) any representation or warranty of ARMO set forth in Sections 3.01, 3.04, 3.20, 3.22 or 3.22 of the Merger Agreement (concerning ARMO’s organization, standing and power; authority, execution and delivery, and enforceability; brokers and other advisors; opinion of financial advisors; and no vote required) shall not be true and correct in all material respects at and as of the date of the Merger Agreement and at and as of such time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date) (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality”), (C) any representation or warranty of ARMO set forth in Section 3.02(a)-(d) of the Merger Agreement (concerning ARMO’s capital structure) shall not be true and correct other than in de minimis respects at and as of the date of the Merger Agreement and at and as of such time in all respects at such time, except to the extent such representation and warranty expressly relates to a specified date (in which case on and as of such specified date) and (D) any representation and warranty set forth in Section 3.08(a) of the Merger Agreement (concerning the absence of certain changes or events) shall not be true and correct in all respects at such time;
Appears in 1 contract
Samples: Offer to Purchase (Lilly Eli & Co)
Conditions of the Offer. For purposes Notwithstanding any other provision of this Section 15the Offer, capitalized but subject to compliance with the terms used in this Section 15 and defined in the Merger Agreement have the meanings set forth in conditions of the Merger Agreement, a copy of which is filed as Exhibit and in addition to (d)(1and not in limitation of) of the Schedule TO and is incorporated herein by reference. The obligation obligations of Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) extend the Offer pursuant to the Offer is subject to the satisfaction terms and conditions of the conditions below. Merger Agreement, Purchaser (i) will not be required to, and Lilly shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Purchaser’s our obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer)), to pay for any Shares tendered pursuant to the Offer and Shares, (ii) may delay the acceptance for payment of or, subject to any applicable rules and regulations of the SECrestriction referred to above, the payment for, any tendered Shares, Shares and (subject iii) may terminate or amend the Offer as to Shares not then paid for, in the event that at or prior to the provisions of the Merger Agreement) may not accept for payment any tendered Shares if, at the then-scheduled expiration of the OfferOffer (as it may be extended pursuant to the Merger Agreement), (A) the Antitrust Condition shall not have been satisfied, (B) the Minimum Condition shall not have been satisfied or (C) any of the following conditions existshall have occurred:
(i1) any of the Minimum Tender Condition has not been satisfied;
(ii) the Antitrust Condition has not been satisfied;
(iii) the Legal Restraint Condition has not been satisfied;
(iv) (A) certain specified representations or and warranties of ARMO ArcSight set forth in Article III of the Merger Agreement (other than those set forth in Sections 3.01, 3.02(a)-(d), 3.04, 3.08(a), 3.20, 3.22 and 3.23 of the Merger Agreementi) shall not be have been true and correct at and in all respects as of the date of the Merger Agreement and as of such time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date), other than for such failures to be true and correct that have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect”), (B) any representation or warranty of ARMO set forth in Sections 3.01, 3.04, 3.20, 3.22 or 3.22 of the Merger Agreement (concerning ARMO’s organization, standing and power; authority, execution and delivery, and enforceability; brokers and other advisors; opinion of financial advisors; and no vote required) shall not be true and correct in all material respects at and as of the date of the Merger Agreement and at and as of such time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date) (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality”), (C) any representation or warranty of ARMO set forth in Section 3.02(a)-(d) of the Merger Agreement (concerning ARMO’s capital structure) shall not be true and correct other than in de minimis respects at and as of the date of the Merger Agreement and at and as of such time in all respects at such time, except to the extent such representation and warranty expressly relates to a specified date (in which case on and as of such specified date) and (D) any representation and warranty set forth in Section 3.08(a) of the Merger Agreement (concerning the absence of certain changes or eventsii) shall not be true and correct in all respects at on and as of the expiration date of the Offer with the same force and effect as if made on and as of such timedate, except, in the case of the foregoing clauses (i) and (ii), (A) for any failure to be so true and correct as has not had and would not be reasonably expected have, individually or in the aggregate, an ArcSight Material Adverse Effect (as defined below); provided, however, that such ArcSight Material Adverse Effect qualifier shall be inapplicable with respect to representations and warranties set forth in Section 2.2(a), Section 4.2(a), Section 4.4 and Section 4.25 of the Merger Agreement, each of which individually shall have been true and correct in all material respects as of the expiration date of the Offer, (B) for changes contemplated by the Merger Agreement and (C) for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct as of such particular date); and provided further that, for purposes of determining the accuracy of the representations and warranties of ArcSight set forth in the Merger Agreement for purposes of this clause (C)(1), (i) all "ArcSight Material Adverse Effect" and materiality qualifications and other qualifications based on the word "material" or similar phrases contained in such representations and warranties will be disregarded (it being understood and hereby agreed that (x) the phrase "similar phrases" as used in this proviso will not be deemed to include any dollar thresholds contained in any such representations and warranties and (y) the representation and warranty set forth in Section 4.8(b) of the Merger Agreement will not be disregarded pursuant to the terms of this proviso) and (ii) any update of or modification to the confidential disclosure schedules provided by ArcSight made or purported to have been made after the date of the Merger Agreement will be disregarded;
(2) ArcSight has failed to perform in any material respect any obligation or to comply in any material respect with any material covenant or other material agreement of ArcSight to be performed or complied with by it under the Merger Agreement;
(3) there shall be pending, or HP or ArcSight shall have received notice (oral or written) of an intent to commence, any suit, action or proceeding by any governmental entity against HP, Purchaser, ArcSight or any subsidiary of ArcSight (i) challenging the acquisition by Purchaser (or HP on Purchaser's behalf) of any Shares pursuant to the Offer, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger Agreement, or (ii) seeking to compel HP, ArcSight or any of their respective subsidiaries to agree to any sale, divestiture, license or other disposition of shares of capital stock or of any business, assets or property, or the imposition of any limitation on the ability of any of them to conduct their respective businesses or to own or exercise control of such stock, businesses, assets or properties, if
(A) such actions reasonably would be expected to have a material adverse effect on (x) ArcSight and its subsidiaries, taken as a whole, or (y) the benefits expected to be derived by HP and its subsidiaries from the transactions contemplated by Merger Agreement or (B) such actions reasonably would be expected to have a material adverse effect on the operations or businesses of HP and its subsidiaries, taken as a whole (assuming for purposes of this determination that HP and its subsidiaries are of the equivalent size, and have equivalent revenues, to ArcSight and its subsidiaries, taken as a whole);
(4) any governmental entity of competent jurisdiction located within the United States, Austria, Germany or any other jurisdiction shall have (i) enacted, issued, promulgated, entered, enforced or deemed applicable to the Offer and the Merger any law, statute, rule or regulation that is in effect and has the effect of making the Offer or the Merger illegal or which has the effect of prohibiting, requiring a mandatory filing or notification as a condition to the legality or approval of the Offer and/or Merger, or otherwise preventing the Offer and the Merger or (ii) issued or granted any judgment, Order or injunction that is in effect and has the effect of making the Offer and the Merger illegal or which has the effect of prohibiting or otherwise preventing the Offer and the Merger; provided, however, with respect to any jurisdictions other than the United States, Austria and Germany, only if such event (a) reasonably would be expected to have a material adverse effect on (1) ArcSight and its subsidiaries, taken as a whole, or (2) the benefits expected to be derived by HP and its subsidiaries from the transactions contemplated by the Merger Agreement or (b) reasonably would be expected to have a material adverse effect on the operations or businesses of HP and its subsidiaries, taken as a whole (assuming for purposes of this determination that HP and its subsidiaries are of the equivalent size, and have equivalent revenues, to ArcSight and its subsidiaries, taken as a whole; or
(5) the Merger Agreement has been terminated in accordance with its terms.
Appears in 1 contract
Conditions of the Offer. For the purposes of this Section 1513, capitalized terms used in this Section 15 and but not defined in the Merger Agreement herein have the meanings set forth in the Merger Agreement, a copy of which is filed as Exhibit (d)(1) . Notwithstanding any other provision of the Schedule TO and is incorporated herein by reference. The obligation of Offer, Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions below. Purchaser will not be required to, and Lilly shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, SEC including Rule 14e-l(c14e-1 promulgated under the Exchange Act, pay for any validly tendered Shares if (a) the Minimum Condition or the Termination Condition shall not have been satisfied at the Expiration Date, (b) any applicable waiting period (including any extension thereof) under the Exchange HSR Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant with respect to the Offer and may delay or the acceptance for payment of or, subject to any applicable rules and regulations of the SEC, the payment for, any tendered Shares, and (subject Merger has not expired or been terminated at or prior to the provisions of the Merger AgreementExpiration Date or (c) may not accept for payment any tendered Shares if, at the then-scheduled expiration of the Offer, any of the following conditions existexist or has occurred and is continuing at the Expiration Date:
(i) any governmental authority of competent jurisdiction, located in the Minimum Tender Condition has not been satisfied;United States or in another jurisdiction outside of the United States in which TCS or any of its subsidiaries, or Comtech or any of its subsidiaries, engage in material business activities, shall have enacted, entered, promulgated or enforced any Order (whether temporary, preliminary or permanent) or Law which is in effect that prohibits, declares unlawful, enjoins or otherwise prevents the consummation of the Offer or the Merger or any of the transactions contemplated by the Merger Agreement;
(iia) the Antitrust Condition has not been satisfied;
representations and warranties of TCS contained in Sections 3.01 (iii) the Legal Restraint Condition has not been satisfied;
(ivOrganization, Standing and Corporate Power) (Asolely as it relates to the due incorporation and valid existence of the Company), 3.02 (Authority) certain specified representations or warranties of ARMO set forth in Article III and Section 3.04(b) and (d) (Capitalization) of the Merger Agreement (other than those set forth in Sections 3.01, 3.02(a)-(d), 3.04, 3.08(a), 3.20, 3.22 and 3.23 of the Merger Agreement) shall not be true and correct at and in all material respects as of the date of the Merger Agreement and as of immediately prior to the expiration of the Offer as though made as of such time, time (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), (b) the representations and warranties of TCS contained in Section 3.04(a) and (c) (Capitalization) of the Merger Agreement shall not be true and correct in all but de minimis respects as of the date of the Merger Agreement and as of immediately prior to the expiration of the Offer as though made as of such time (except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), (c) the representation and warranty of TCS contained in the last sentence of Section 3.09 (No Material Adverse Effect) of the Merger Agreement shall not be true and correct in all respects as of the date of the Merger Agreement and as of immediately prior to the expiration of the Offer as though made as of such time and (d) any other representations and warranties of TCS contained in the Merger Agreement shall not be true and correct (without giving effect to any qualifications or warranty limitations as to materiality or Material Adverse Effect set forth therein) as of the date of the Merger Agreement and as of immediately prior to the expiration of the Offer as though made as of such time (except to the extent such representations and warranties expressly relates relate to a specified date (date, in which case on and as of such specified date), other than except, in the case of this clause (d), for such failures to be true and correct that have not had or and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect”); TABLE OF CONTENTS (iii) TCS shall have failed to perform, (B) any representation or warranty of ARMO set forth in Sections 3.01comply with, 3.04, 3.20, 3.22 or 3.22 of the Merger Agreement (concerning ARMO’s organization, standing and power; authority, execution and delivery, and enforceability; brokers and other advisors; opinion of financial advisors; and no vote required) shall not be true and correct in all material respects all obligations required to be performed by or complied with by it under the Merger Agreement at and as or prior to the expiration of the date Offer;
(iv) Comtech shall not have received a certificate signed by an executive officer of TCS certifying that none of the conditions specified set forth in paragraphs (ii) and (iii) of this Section 13 — “Conditions of the Offer” have occurred; or
(v) two business days (or such fewer number of business days that remain between the end of the Marketing Period and the End Date) shall not have passed after completion of the Marketing Period. The foregoing conditions, other than the Minimum Condition and the Termination Condition, are for the sole benefit of Comtech and Purchaser, may be asserted by Comtech or Purchaser regardless of the circumstances giving rise to such condition and may be waived by Comtech or Purchaser in whole or in part at any time and from time to time in the sole and absolute discretion of Comtech or Purchaser, subject in each case to the terms of the Merger Agreement and Agreement. The failure by Comtech or Purchaser at and as of such time, except any time to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date) (for purposes of determining the satisfaction of this condition, without regard to exercise any qualifications or exceptions contained therein as to “materiality”), (C) any representation or warranty of ARMO set forth in Section 3.02(a)-(d) of the Merger Agreement (concerning ARMO’s capital structure) foregoing rights shall not be true deemed a waiver of any such right and, each such right shall be deemed an ongoing right which may be asserted at any time and correct other than in de minimis respects at and as of the date of the Merger Agreement and at and as of such from time in all respects at such to time, except to the extent such representation and warranty expressly relates to a specified date (in which case on and as of such specified date) and (D) any representation and warranty set forth in Section 3.08(a) of the Merger Agreement (concerning the absence of certain changes or events) shall not be true and correct in all respects at such time;.
Appears in 1 contract
Samples: Offer to Purchase Agreement (Comtech Telecommunications Corp /De/)
Conditions of the Offer. For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement have the meanings set forth in the Merger Agreement, a copy of which is filed as Exhibit (d)(1) Notwithstanding any other provision of the Schedule TO and is incorporated herein by reference. The obligation of Offer, Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions below. Purchaser will not be required to, and Lilly shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Company Common Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer for, and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the SEC, the payment for, any tendered Company Common Shares, and (subject to may amend the provisions Offer consistent with the terms of the Merger Agreement) may Agreement or terminate the Offer and not accept for payment any tendered Shares Company Common Shares, if, at the then-scheduled expiration of the Offer, any of the following conditions exist:
(i) the Minimum Tender Condition has shall not have been satisfied;satisfied at the time of expiration of the Offer, as it may be extended; or
(ii) on any scheduled Expiration Date of the Antitrust Condition has Offer, as the same may be extended, any of the following events or circumstances shall occur or exist or shall be reasonably determined by X.X. Xxxxxx or Purchaser to have occurred or exist:
(a) any waiting period (and any extension thereof) applicable to the consummation of the Offer and the Merger under the HSR Act shall not have expired or been satisfiedterminated;
(iiib) any waiting period applicable to the Legal Restraint Condition has Offer or the Merger under any applicable foreign antitrust or competition-related legal requirements shall not have expired or been satisfiedterminated, and any consent required under 27 Table of Contents any applicable foreign antitrust or competition-related legal requirement in connection with the Offer or the Merger shall not have been obtained or not be in full force and effect;
(ivc) (A) with certain specified representations exceptions, any change, effect, result, event occurrence or warranties state of ARMO set forth facts that is or would reasonably be expected to be materially adverse to the business, financial condition, assets, liabilities or results of operations of the Company and its subsidiaries, taken as a whole, or which is or would be reasonably expected to be materially adverse to the ability of the Company to consummate the transactions contemplated in Article III of the Merger Agreement (“Company Material Adverse Effect”);
(d) any general suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange or Nasdaq Global Select Market, (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States or any limitation by federal or state authorities on the extension of credit by lending institutions, or a disruption of or material adverse change in either the syndication market for credit facilities or the financial, banking or capital markets that have a disproportionate adverse effect on the Company and its Subsidiaries taken as a whole relative to other industry participants, or (iii) a commencement of war or armed hostilities (other than those a continuation of such wars, conflicts or actions in which the United States armed forces were engaged as of the date of the Agreement) directly involving the United States or any other jurisdiction in which the Company or any of the Company’s Subsidiaries has material assets or operations, provided that such action results in a Company Material Adverse Effect or materially or adversely affects or delays the consummation of the Offer;
(e) any of the representations and warranties of the Company set forth in Sections 3.01, 3.02(a)-(d), 3.04, 3.08(a), 3.20, 3.22 and 3.23 of the Merger AgreementAgreement (without giving effect to any materiality or similar qualification contained therein) shall not be true and correct at and correct, as of the date of the Merger Agreement and or as of a date subsequent to the date of the Merger Agreement as if made on such timesubsequent date, except to the extent the failure of any such representation or warranty expressly relates to a specified date (in which case on representations and as of such specified date), other than for such failures warranties to be true and correct that have not had (without giving effect to any materiality or similar qualification contained therein), taken together in their entirety, would not reasonably be expected to havehave a Company Material Adverse Effect; provided, individually however, that any such breach capable of being cured has not in fact been cured prior to the initial expiration date of the Offer (or such later date upon which the Offer shall expire in accordance with the Merger Agreement);
(f) the Company shall not have performed and complied, in all material respects, with each covenant or agreement contained in the aggregate, Agreement and required to be performed or complied with by it and such failure would reasonably be expected to have a Company Material Adverse Effect (for purposes and such failure is incapable of determining being cured or has not been cured during the satisfaction of this conditiongrace period described in the proviso below; provided, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect”)however, (B) any representation or warranty of ARMO set forth in Sections 3.01if such breach is curable by the Company, 3.04, 3.20, 3.22 or 3.22 of then X.X. Xxxxxx may not terminate the Merger Agreement with respect to a particular breach prior to or during the ten business-day period commencing upon delivery by X.X. Xxxxxx of written notice to the Company of such breach, so long as the Company continues to exercise commercially reasonable efforts to cure such breach during such ten business-day period;
(concerning ARMOg) any temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the Offer or the Merger or any of the other transactions contemplated by the Merger Agreement shall be pending or shall have been issued by any court of competent jurisdiction and remain in effect, or there shall be any law enacted or deemed applicable by a governmental entity to the Offer or the Merger or any of the other transactions contemplated by the Merger Agreement that makes consummation of the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement illegal;
(h) any antitrust regulator or body having decided to take, institute, implement or threaten any action proceeding, suit, investigation, enquiry or reference, or having required any action to be taken or otherwise having done anything or having enacted, made or proposed any statute, regulation, decision, order or change to published practice or there would be outstanding any statute, regulation, decision or order which would or might: • impose any limitation on, or result in a delay in, the ability of X.X. Xxxxxx or Purchaser directly or indirectly to acquire or hold or to exercise effectively all or any rights of ownership in respect of shares or other securities (or the equivalent) in the Company or its subsidiaries or on the ability of X.X. Xxxxxx directly or indirectly to hold or exercise effectively any rights of ownership in respect of shares or other securities (or the equivalent) in, or to exercise management control over, the Company or any of its subsidiaries, or 28 Table of Contents • require X.X. Xxxxxx, Company or Purchaser to divest any of their respective assets or businesses in connection with the Offer and the Merger or any of the transactions contemplated by the Merger Agreement;
(i) the failure of the Company to obtain any necessary consent to the transactions contemplated by the Merger Agreement required by the contracts with the Company’s organization, standing and power; authority, execution and delivery, and enforceability; brokers and other advisors; opinion of financial advisors; and no vote required) shall not be true and correct vendors identified in all material respects at and as of writing by X.X. Xxxxxx to the Company on or prior to the date of the Merger Agreement and at and as of such time, except to the extent such representation or warranty expressly relates to a specified date Agreement; or
(in which case on and as of such specified datej) (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality”), (C) any representation or warranty of ARMO set forth in Section 3.02(a)-(d) of the Merger Agreement (concerning ARMO’s capital structure) shall not be true and correct other than has been terminated in de minimis respects at and as of the date of the Merger Agreement and at and as of such time in all respects at such time, except to the extent such representation and warranty expressly relates to a specified date (in which case on and as of such specified date) and (D) any representation and warranty set forth in Section 3.08(a) of the Merger Agreement (concerning the absence of certain changes or events) shall not be true and correct in all respects at such time;accordance with its terms.
Appears in 1 contract
Samples: Merger Agreement (Foster L B Co)
Conditions of the Offer. For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement have the meanings set forth in Pursuant to the Merger Agreement, a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser we are not required to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions below. Purchaser will not be required to, and Lilly shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to and we may terminate the Offer and may delay if on the acceptance for payment of or, subject to any applicable rules and regulations date of the SEC, the payment for, any tendered Shares, and (subject to the provisions of the Merger Agreement) may not accept for payment any tendered Shares if, at the then-scheduled expiration of the Offer, Expiration Time any of the following conditions exist:has not been satisfied (or, to the extent legally permissible, waived):
(1) the Antitrust Condition;
(i) the Minimum Tender Condition has not been satisfied;
(ii) the Antitrust Condition has not been satisfied;
(iii) the Legal Restraint Condition has not been satisfied;
(ivrepresentations and warranties of OPAY contained in Section 5.1(a) (AOrganization and Qualification), the first two sentences of Section 5.2(a), the first three sentences of Section 5.2(b) certain specified representations or warranties of ARMO set forth and in Article III Section 5.2(d) (Capitalization), Section 5.3(a) (Authority), Section 5.6(d) (SEC Filings; Financial Statements) and Section 5.18 (Board Approval) of the Merger Agreement (other than those set forth in Sections 3.01, 3.02(a)-(d), 3.04, 3.08(a), 3.20, 3.22 and 3.23 of the Merger Agreement) shall not be were true and correct at and in all material respects as of the date of the Merger Agreement and as of such time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date), other than for such failures to be true and correct that have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect”), (B) any representation or warranty of ARMO set forth in Sections 3.01, 3.04, 3.20, 3.22 or 3.22 of the Merger Agreement (concerning ARMO’s organization, standing and power; authority, execution and delivery, and enforceability; brokers and other advisors; opinion of financial advisors; and no vote required) shall not be are true and correct in all material respects at as of the Offer Closing with the same force and effect as if made as of the Offer Closing (except for those representations and warranties which address matters only as of an earlier date which must have been true and correct in all material respects as of such earlier date) and (ii) all other representations and warranties of OPAY set forth in the Merger Agreement were true and correct as of the date of the Merger Agreement and at and as of such time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date) (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality”), (C) any representation or warranty of ARMO set forth in Section 3.02(a)-(d) of the Merger Agreement (concerning ARMO’s capital structure) shall not be are true and correct other than in de minimis respects as of the Offer Closing as if made at and as of the Offer Closing (except for those representations and warranties which address matters only as of an earlier date which must have been true and correct as of such earlier date), disregarding for these purposes any exception in such representations and warranties relating to materiality or a “Material Adverse Effect” (as defined below), except in the case of the matters referred to in this clause (ii) for such failures to be true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on OPAY;
(3) since the date of the Merger Agreement, there has not occurred any effect that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect on OPAY;
(4) OPAY has performed or complied in all material respects with all covenants required by the Merger Agreement to be performed or complied with by it on or prior to the Offer Closing and ACI has received a certificate of an executive officer of OPAY confirming the satisfaction of the conditions set forth in clauses (2), (3) and (4) above;
(5) no law or order issued by any court of competent jurisdiction or other governmental entity or other legal restraint or prohibition preventing the consummation of the Offer or the Merger is in effect;
(6) the Litigation Condition;
(i) OPAY has not published or become obligated to publish a press release or filed or become obligated to file a report with the SEC to the effect that OPAY’s prior financial statements or reports filed with the SEC may no longer be relied upon or announced that the audit committee of the OPAY Board is conducting an investigation with respect to accounting matters, (ii) none of OPAY or any of its directors or executive officers has been named as a party to any criminal proceeding or been informed in writing that he or she has become the target of any investigation by a governmental entity of possible criminal conduct where such conduct relates to the business of OPAY, or (iii) OPAY has not failed to file its Form 10-K with the SEC for the fiscal year ended September 30, 2013, on or prior to December 16, 2013, including an unqualified opinion from Ernst & Young LLP on the effectiveness of OPAY’s internal control over financial reporting as of September 30, 2013, unless the Expiration Time occurred prior to December 16, 2013 but for this clause (7)(iii); and
(8) the Agreement has not been terminated in accordance with its terms. The foregoing conditions are for the sole benefit of ACI and us and, except for the Minimum Condition, which may be waived only with the prior written consent of OPAY, may be waived by ACI and us, in our sole discretion, in whole or in part at any applicable time or from time to time, subject to the terms and conditions of the Merger Agreement and at the applicable rules and as of such time in all respects at such time, except to the extent such representation and warranty expressly relates to a specified date (in which case on and as of such specified date) and (D) any representation and warranty set forth in Section 3.08(a) regulations of the Merger Agreement (concerning SEC. Our failure at any time to exercise Table of Contents any of the absence of certain changes or events) shall foregoing rights will not be true deemed a waiver of any such right and correct in all respects each such right will be deemed an ongoing right which may be asserted at such any time and from time to time;.
Appears in 1 contract
Conditions of the Offer. For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement have the meanings set forth in the Merger Agreement, a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions below. Purchaser will not be required to, and Lilly shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the SEC, the payment for, any tendered Shares, and (subject to the provisions of the Merger Agreement) may not accept for payment any tendered Shares if, at the then-scheduled expiration of the Offer, any of the following conditions exist:
(i) the Minimum Tender Condition has not been satisfied;
(ii) the Antitrust Condition has not been satisfied;; Table of Contents
(iii) the Legal Restraint Condition has not been satisfied;
(iv) (A) certain specified any representations or warranties of ARMO Loxo Oncology set forth in Article III of the Merger Agreement (other than those set forth in Sections 3.01, 3.02(a)-(d3.02(a), (c) and (d), 3.04, 3.08(a), 3.20, 3.22 and 3.23 of the Merger Agreement) shall not be true and correct at and as of the date of the Merger Agreement at and as of such time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date), other than for such failures to be true and correct that have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect”), (B) any representation or warranty of ARMO Loxo Oncology set forth in Sections 3.01, 3.04, 3.20, 3.22 or 3.22 3.23 of the Merger Agreement (concerning ARMOLoxo Oncology’s organization, standing and power; authority, execution and delivery, and enforceability; brokers and other advisors; opinion of financial advisors; and no vote required) shall not be true and correct in all material respects at and as of the date of the Merger Agreement and at and as of such time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date) (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality”), (C) any representation or warranty of ARMO Loxo Oncology set forth in Section 3.02(a)-(d3.02(a), (c) and (d) of the Merger Agreement (concerning ARMOLoxo Oncology’s capital structure) shall not be true and correct other than in de minimis respects at and as of the date of the Merger Agreement and at and as of such time in all respects at such time, except to the extent such representation and or warranty expressly relates to a specified date (in which case on and as of such specified date) and (D) any representation and or warranty of Loxo Oncology set forth in Section 3.08(a) of the Merger Agreement (concerning the absence of certain changes or events) shall not be true and correct in all respects at such time;
(v) Loxo Oncology shall have failed to perform in all material respects all obligations to be performed by it as of such time under the Merger Agreement;
(vi) Lilly shall have failed to receive from Loxo Oncology a certificate, dated as of the date on which the Offer expires and signed by an executive officer of Loxo Oncology, certifying to the effect that the conditions set forth in paragraphs (iv) and (v) immediately above do not exist and have not occurred; or
(vii) the Termination Condition exists. The foregoing conditions are for the sole benefit of Lilly and Purchaser and, subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC, may be waived by Lilly and Purchaser, in whole or in part at any time and from time to time, in their sole discretion (except for the Minimum Tender Condition and the Termination Condition, which may not be waived by Lilly or Purchaser). The failure by Lilly, Purchaser or any other affiliate of Lilly at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances and each such right will be deemed an ongoing right that may be asserted at any time and from time to time.
Appears in 1 contract
Samples: Offer to Purchase (Lilly Eli & Co)
Conditions of the Offer. For purposes Notwithstanding any other term of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement have the meanings set forth in Offer or the Merger Agreement, a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions below. Purchaser will shall not be required to, and Lilly Parent shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer and and, subject to the terms of the Merger Agreement, may delay the acceptance for payment of oror payment for Shares or may terminate or amend the Offer, subject if:
(a) prior to any applicable rules the Expiration Time, there shall not have been validly tendered (and regulations not properly withdrawn) at least one Share more than 50% of the SEC, the payment for, any tendered Shares, number of Shares that are then issued and (subject to the provisions outstanding as of the Merger Agreement) may not accept for payment any tendered Shares if, at the then-scheduled expiration of the Offer, Offer (the “Minimum Tender Condition”); or
(b) any of the following conditions existexist or shall have occurred and be continuing at the Expiration Time:
(i) there shall be any Legal Restraint in effect preventing or prohibiting the Minimum Tender Condition has not been satisfiedconsummation of the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement;
(ii) the Antitrust Condition has not been satisfied;
(iii) the Legal Restraint Condition has not been satisfied;
(iv) (A) certain specified representations (1) any representation or warranties warranty of ARMO Xxxxx set forth in Article III IV of the Merger Agreement (other than those set forth in Sections 3.01Section 4.01 (Organization, 3.02(a)-(dStanding and Power) (but only with respect to the first sentence thereof), 3.04, 3.08(aSection 4.02 (Corporate Authorization), 3.20Section 4.05 (Capitalization), 3.22 Section 4.06 (Subsidiaries), Section 4.09(a) (Absence or Certain Changes or Events), Section 4.25 (Brokers and 3.23 Finder’s Fees), Section 4.26 (Opinion of the Merger AgreementFinancial Advisor) and Section 4.29 (No Vote Required)) shall not be true and correct as of the Agreement Date and at and as of the date of the Merger Agreement Offer Closing Time as if made on and as of such timethe Offer Closing Time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date), other than for such failures to be true and correct that have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (as defined below) (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect”), (B2) any representation or warranty of ARMO Xxxxx set forth in Sections 3.01Section 4.01 (Organization, 3.04Standing and Power) (but only with respect to the first sentence thereof), 3.20Section 4.02 (Corporate Authorization), 3.22 or 3.22 Section 4.06 (Subsidiaries), Section 4.25 (Brokers and Finder’s Fees), Section 4.26 (Opinion of the Merger Agreement (concerning ARMO’s organization, standing and power; authority, execution and delivery, and enforceability; brokers and other advisors; opinion of financial advisors; and no vote requiredFinancial Advisor) shall not be true and correct in all material respects (provided that any inaccuracy in any representation or warranty set forth in Section 4.25 (Brokers and Finder’s Fees) constituting a liability greater than 0.5% of the Aggregate Consideration shall be deemed material) as of the Agreement Date and at and as of the Offer Closing Time as if made on and as of the Offer Closing Time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date), (3) any representation or warranty of Xxxxx set forth in Section 4.05 (Capitalization) of the Merger Agreement shall not be true and correct other than inaccuracies which would not cause the Aggregate Consideration to increase by more than 0.5%, as of the Agreement Date and at and as of such timethe Offer Closing Time as if made on and as of the Offer Closing Time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date) and (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality”), (C4) any representation or warranty of ARMO Xxxxx set forth in Section 3.02(a)-(d4.09(a) (Absence or Certain Changes or Events) and Section 4.29 (No Vote Required) of the Merger Agreement (concerning ARMO’s capital structure) shall not be true and correct other than in de minimis all respects as of the Agreement Date and at and as of the date of the Merger Agreement and at Offer Closing Time as if made on and as of such time in all respects at such timethe Offer Closing Time, except to the extent such representation and or warranty expressly relates to a specified date (in which case on and as of such specified date);
(iii) Xxxxx shall have failed to perform in all material respects the obligations to be performed by it as of such time under the Merger Agreement, including without limitation Xxxxx obligations under Section 6.02 of the Merger Agreement;
(iv) Parent shall have failed to receive from Xxxxx a certificate, dated as of the date on which the Offer expires and signed by an executive officer of Xxxxx, certifying to the effect that the Offer Conditions set forth in clauses (ii), (iii), (v) and (Dvii) have been satisfied as of immediately prior to the expiration of the Offer;
(v) since the Agreement Date, any representation and warranty set forth event, occurrence, development or state of circumstances, facts or condition has occurred that has had or would reasonably be expected to have, individually or in Section 3.08(athe aggregate, a Company Material Adverse Effect;
(vi) of the Merger Agreement shall have been validly terminated in accordance with its terms (concerning the absence “Termination Condition”);
(vii) the aggregate number of certain changes Appraisal Shares shall represent 15% or eventsmore of the outstanding Shares of Xxxxx; or
(viii) shall not be true and correct the (A) Closing Cash (as defined in all respects at such time;the Merger Agreement) is either (1) less than $55,000,000 if the Offer Closing Time is on or before July 31, 2024 or (2) less than $53,000,000 if the Offer Closing Time is after July 31, 2024 (the “Minimum Cash Condition”); or (B) the Net Working Capital (as defined in the Merger Agreement) is either (1) less than $1,800,000 if the Offer Closing Time is on or before July 31, 2024 or (2) less than $2,000,000 if the Offer Closing Time is after July 31, 2024 (the “Minimum NWC Condition”).
Appears in 1 contract
Conditions of the Offer. For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement have the meanings set forth in the Merger Agreement, a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions below. Purchaser will not be required to, and Lilly shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the SEC, the payment for, any tendered Shares, and (subject to the provisions of the Merger Agreement) may not accept for payment any tendered Shares if, at the then-scheduled expiration of the Offer, any of the following conditions exist:
(i) the Minimum Tender Condition has not been satisfied;
(ii) the Antitrust Condition has not been satisfied;
(iii) the Legal Restraint Condition has not been satisfied;
(iv) (A) certain specified any representations or warranties of ARMO Dermira set forth in Article III of the Merger Agreement (other than those set forth in Sections 3.01, 3.02(a)-(d3.02(a), (c) and (d), 3.04, 3.08(a), 3.20, 3.22 and 3.23 of the Merger Agreement) shall not be true and correct at and as of the date of the Merger Agreement at and as of such time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date), other than for such failures to be true and correct that have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect”), (B) any representation or warranty of ARMO Dermira set forth in Sections 3.01, 3.04, 3.20, 3.22 or 3.22 3.23 of the Merger Agreement (concerning ARMODermira’s organization, standing and power; authority, execution and delivery, and enforceability; brokers and other advisors; opinion of financial advisors; and no vote required) shall not be true and correct in all material respects at and as of the date of the Merger Agreement and at and as of such time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date) (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality”), (C) any representation or warranty of ARMO Dermira set forth in Section 3.02(a)-(d3.02(a), (c) and (d) of the Merger Agreement (concerning ARMODermira’s capital structure) shall not be true and correct other than in de minimis respects at and as of the date of the Merger Agreement and at and as of such time in all respects at such time, except to the extent such representation and or warranty expressly relates to a specified date (in which case on and as of such specified date) and (D) any representation and or warranty of Dermira set forth in Section 3.08(a) of the Table of Contents Merger Agreement (concerning the absence of certain changes or events) shall not be true and correct in all respects at as of such time;
(v) Dermira shall have failed to perform in all material respects the obligations to be performed by it as of such time under the Merger Agreement;
(vi) Lilly shall have failed to receive from Dermira a certificate, dated as of the date on which the Offer expires and signed by an executive officer of Dermira, certifying to the effect that the conditions set forth in paragraphs (iv) and (v) immediately above have been satisfied as of immediately prior to the expiration of the Offer; or
(vii) the Termination Condition exists. The foregoing conditions are for the sole benefit of Lilly and Purchaser and, subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC, may be waived by Xxxxx and Purchaser, in whole or in part at any time and from time to time, in their sole discretion (except for the Minimum Tender Condition and the Termination Condition, which may not be waived by Xxxxx or Purchaser). The failure by Xxxxx, Purchaser or any other affiliate of Lilly at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances and each such right will be deemed an ongoing right that may be asserted at any time and from time to time.
Appears in 1 contract
Samples: Offer to Purchase (ELI LILLY & Co)
