Conduct of the Offer. (a) Provided that none of the events or circumstances set forth in Annex I attached hereto shall have occurred or exist, as promptly as practicable (and in any event not later than five business days after the date hereof, provided that the Company has within a reasonable time prior thereto furnished Parent with the information about the Company required to be included in the Offer Documents, as defined in paragraph (e) below), Acquisition Co. shall commence, within the meaning of Rule 14d-2 under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), the Offer.
(b) Subject to the terms and conditions of the Offer and this Agreement, Acquisition Co. shall accept for payment all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable Law (as defined in paragraph (c) below) and shall pay for such shares promptly thereafter (and in any event in compliance with Rule 14e-1(c) under the Exchange Act). Acquisition Co.’s obligation to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject to:
(i) the condition that there shall be a number of shares of Company Common Stock validly tendered pursuant to the Offer and not withdrawn, together with shares of Company Common Stock owned by Parent, including shares of Company Common Stock subject to the Tender and Voting Agreement (such shares owned by Parent and/or subject to the Tender and Voting Agreement being referred to as the “Parent-Owned Shares”), that, immediately prior to the acceptance for payment of shares of Company Common Stock pursuant to the Offer, represents at least a majority of the Fully Diluted Number of Company Shares (as defined in paragraph (d) below) (the “Minimum Condition”); and
(ii) the other conditions set forth in Annex I. Acquisition Co. expressly reserves the right in its sole discretion to increase the initial Per-Share Amount, to waive (in whole or in part) any of the conditions of the Offer set forth in Annex I, or to make any other changes in the terms and conditions of the Offer; provided, however, that without the Company’s prior written consent: (1) the Minimum Condition may not be amended or waived; (2) no change may be made that alters the form of consideration to be paid, reduces the Per-Share Amount, changes the number of shares of Company Common Stock sought in the Offer, or imposes conditions to the Offer in additi...
Conduct of the Offer. (a) Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable after the date of this Agreement (but in no event later than 15 Business Days from the date of this Agreement); provided, however, that Merger Subsidiary shall not be required to commence the Offer if: (i) any of the conditions set forth in clauses (a), (b)(i), (b)(ii), (c)(i), (d), (e), (g)(i), (h), (i) and (j) of Exhibit B shall not be satisfied; or (ii) the Company shall not be prepared to file immediately with the SEC, and to disseminate to holders of shares of Company Common Stock, the Schedule 14D-9. (The date on which Merger Subsidiary commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date”). Table of Contents
(b) The obligation of Merger Subsidiary to accept for payment, and pay for, shares of Company Common Stock validly tendered (and not withdrawn) pursuant to the Offer shall be subject to the satisfaction or (if permitted) waiver of: (i) the condition (the “Minimum Condition”) that: (A) there shall be validly tendered (and not withdrawn) a number of shares of Company Common Stock (excluding, in such number, shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) that, together with any shares of Company Common Stock owned by Ultimate Parent, Parent or Merger Subsidiary immediately prior to the Acceptance Time, represents a majority of the Adjusted Outstanding Share Number; and (B) there shall be validly tendered (and not withdrawn) a number of shares of Company Common Stock (excluding, in such number, (1) shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, and (2) shares of Company Common Stock beneficially owned by (x) the LJE Parties, (y) Ultimate Parent or its Affiliates or (z) any Executive Officers or directors of the Company or their Affiliates) that represents a majority of the shares of Company Common Stock issued and outstanding immediately prior to the Acceptance Time (excluding, from such issued and outstanding shares, shares of Company Common Stock beneficially owned by (x) the LJE Parties, (y) Ultimate Parent or its Affiliates or (z) any Executive Officers or directors of the Company or t...
Conduct of the Offer. The Borrower or Bidco shall ensure that the Offer Press Release, the Offer Document, all other documents issued by it or on its behalf in connection with the Offer and the conduct of the Offer comply in all material respects with all applicable laws and regulations (including the requirements of the City Code) and that as and when necessary all material consents from all governmental and other regulatory authorities required in connection with the Offer are obtained, maintained and/or renewed as appropriate and that all of its material obligations in connection with the Offer are performed in all material respects.
Conduct of the Offer.
2.1 Each Investor and Bidco shall use its reasonable endeavours to procure the Rule 2.7 Announcement is published in accordance with the Code before 10.00a.m. on 24 April 2018, or at such later date as the Investors may agree.
2.2 The Investors have established a committee (the “Steering Committee”) which shall be responsible for the day-to-day conduct of the Offer on behalf of the Parties, in particular those matters set out in Clause 2.6.
2.3 The Steering Committee comprises two members, one appointed on behalf of Antin Holdco (the “Antin Representative”) and one on behalf of WSIP Holdco (the “WSIP Representative”).
2.4 The Investors agree that any member of the Steering Committee shall be entitled to appoint a proxy or alternate to attend meetings of the Steering Committee and vote on behalf of that relevant member, provided that prior notice has been provided to the other members of the Steering Committee.
2.5 Antin Holdco shall be entitled to remove and replace the Antin Representative on not less than two (2) Business Days’ notice to WSIP Holdco. WSIP Holdco shall be entitled to remove and replace the WSIP Representative on not less than two (2) Business Days’ notice to Antin Holdco.
2.6 Subject to Clause 2.10, the Steering Committee shall be responsible for:
(a) any revision of the structure and terms (including any increase to the price) of the Offer, including any election, subject to the Panel’s consent (as required), to implement the Offer by means of a Takeover Offer at any time;
(b) the general conduct and implementation of the Offer and the obtaining of all consents and approvals in relation to it;
(c) liaising, negotiating, or otherwise communicating with the Target, its shareholders, its lending banks or its advisers, any regulatory authority or body or exchange (including any rating agencies) (together, the “Interested Parties”) with respect to the Offer;
(d) determining the Total Funding Commitment and the timing and amount of subscriptions to be made pursuant to Clause 4;
(e) approving all public announcements and other communications concerning the Offer;
(f) overseeing the drafting, execution and delivery of any Offer Document (including determining the timing of publication of any Offer Document);
(g) agreeing the Budget and any amendments to the Budget;
(h) giving instructions to financial, accounting, tax, commercial, legal, PR and other advisers in connection with the Offer;
(i) working with tax advisers to finalise the Tax...
Conduct of the Offer. If an Offer Conversion has occurred:
Conduct of the Offer. Ensure that the Offer Press Release, the Offer Document, all other documents issued by it or on its behalf in connection with the Offer and the conduct of the Offer comply in all material respects with all applicable laws and regulations (including the requirements of the City Code), use commercially reasonable efforts to obtain, maintain and renew, as and when necessary, all material consents from all governmental and other regulatory authorities required in connection with the Offer and ensure that all of its material obligations in connection with the Offer are performed in all material respects, it being understood that the Borrower shall not be obligated to consummate the Acquisition.
Conduct of the Offer. Except with the prior consent of all of the Mandated Lead Arrangers, the Company shall not waive, amend or otherwise vary any of the Reserved Offer Conditions.
Conduct of the Offer. Each Obligor shall, except with the prior consent of all the Lenders:
(a) ensure that the Press Release provided to the Facility Agent pursuant to Part I of Schedule 2 (Conditions precedent) contains all the material terms and conditions of the Offer and the Transaction at that time;
(b) ensure that the Offer Related Documents are substantially on the terms set out in the Press Release (save as permitted pursuant to paragraph (g) of Clause 20.16 (Conduct of the Offer);
(c) promptly supply to the Facility Agent copies of the Offer Document and all material documents, notices or announcements received or issued by it (or on its behalf) in relation to the Offer, the Squeeze-out, the Sell-out and the Transaction;
(d) comply with all applicable laws and regulations relevant to the Offer, the Squeeze-out, the Sell-out and the Transaction;
Conduct of the Offer. (a) The Company must ensure that BidCo does not waive or amend any condition of the Offer without the consent of the Majority Lenders if such waiver or amendment could reasonably be expected to be materially prejudicial to the interests of the Finance Parties.
(b) If the Company becomes aware of any event which, if not waived, would result in the lapse of the Offer or the Offer conditions becoming unable to be fulfilled, the Company must promptly notify the Facility Agent. If the Majority Lenders inform the Company that, in their opinion, the event could reasonably be expected to materially prejudice the Finance Parties, the Company must ensure that BidCo does not waive that condition or treat it as fulfilled and must declare that the Offer has lapsed at the earliest opportunity.
(c) Paragraphs (a) and (b) above do not override any restrictions in Clauses 4.8 (Increase in Share Price) or Clause 4.9 (Level of Acceptances). Clause 4.8 (Increase in Share Price) and Clause 4.9 (Level of Acceptances) override any restriction in paragraphs (a) and (b) above.
(d) The Company shall procure that, until the Term Loan Term Date, BidCo utilises any amounts borrowed by BidCo from the Company under the BidCo Loan Agreement exclusively in or towards the payment of the purchase price for Shares or related costs.
Conduct of the Offer. (a) The parties will work together to implement the Offer and to formulate the negotiation strategy regarding the Offer.
(b) Bidco and Holdco will ensure representatives of Peabody and AM will have the opportunity to:
(1) participate in material meetings with MCC and MCC's major shareholders; and
(2) access any due diligence information provided by MCC, in each case, subject to appropriate confidentiality arrangements being in place.
(c) Each party will provide regular updates to the other parties on any material developments in relation to:
(1) any discussions and negotiations with MCC and MCC's major shareholders; and
(2) the progress of the Offer generally.
(d) Except to the extent otherwise provided for, or otherwise contemplated in, this agreement, the parties will be jointly responsible for the conduct of the Takeover Bid and for making all material decisions in relation to the Offer.
