Merger Agreement. The following summary of certain provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are qualified by reference to the Merger Agreement itself, which is incorporated herein by reference. We have filed a copy of the Merger Agreement as Exhibit (d)(1) to the Schedule TO. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain Information Concerning Purchaser and Parent.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the Merger. It is not intended to provide any other factual information about Parent, Purchaser or Xxxx. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures set forth in a confidential disclosure letter that was provided by Xxxx to Parent and Purchaser but is not filed with the SEC as part of the Merger Agreement. Investors and stockholders are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the parties’ public disclosures. The Offer. The Merger Agreement provides that Purchaser will commence the Offer no later than September 13, 2017. Purchaser’s obligation to accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer.” Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” the Merger Agreement provides that Purchaser shall, and Parent shall cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to the terms of the Merger Agreement. Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in the terms and conditions of the Offer that are not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminated, except that Xxxx’x prior written approval is required for Parent or Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of Shares. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.
Appears in 1 contract
Samples: Offer to Purchase (Moodys Corp /De/)
Merger Agreement. The following is a summary of certain provisions of the Merger Agreement Agreement. The summary does not purport to be complete and all other provisions of the Merger Agreement discussed herein are is qualified in its entirety by reference to the Merger Agreement itself, itself which is incorporated herein by reference. We have has been filed a copy of the Merger Agreement as Exhibit (d)(1) to the Schedule TOTO and is incorporated herein by reference. The Copies of the Merger Agreement may be examined and copies the Schedule TO, and any other filings that Wonder or Purchaser makes with the SEC with respect to the Offer, may be obtained at the places and in the manner set forth in Section 9—“Certain 8 — “Certain Information Concerning Purchaser Wonder and ParentPurchaser.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein in this Section 11 and not otherwise defined in this Offer to Purchase have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the MergerMerger Agreement. It is not intended to provide modify or supplement any other factual information disclosures about ParentWonder, Purchaser or XxxxBlue Apron. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement Wonder, Purchaser and Blue Apron and may be subject to qualifications and limitations agreed upon by such partiesWonder, Purchaser and Blue Apron. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the partiesbetween Wonder, Purchaser and Blue Apron, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC. Neither the inclusion of the Merger Agreement nor the summary of the Merger Agreement is intended to modify or supplement any factual disclosures about Blue Apron, and Wonder or Purchaser in some cases were qualified by disclosures set forth in a confidential disclosure letter that was provided by Xxxx to Parent and Purchaser but is not Blue Apron’s public reports filed with the SEC as part and in some cases, are qualified by the confidential disclosure letter delivered by Blue Apron to Wonder and Purchaser concurrently with the execution of the Merger AgreementAgreement (the “Disclosure Letter”). Investors and stockholders are not third-party beneficiaries under the Merger Agreement (except prior to the Acceptance Time, for the right of holders of Shares to pursue claims for damages (including damages based on loss of the economic benefits of the transaction to the stockholders of Blue Apron, taking into account without limitation the total amount payable to such stockholders under the Merger Agreement) and other relief (including equitable relief) for any breach of the Merger Agreement by Wonder or Purchaser, except with respect to their right whether or not the Merger Agreement has been validly terminated and from and after the Acceptance Time, the rights of holders of Shares, Options, RSUs, PSUs or Common Warrants to receive the Offer Price following the Offer Acceptance Time or to receive consideration in the Merger Consideration (as defined belowapplicable to such holder(s). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger AgreementSeptember 28, 2023, which subsequent information may or may not be fully reflected in the parties’ Wonder, Purchaser and Blue Apron’s public disclosures. The Offer. The Provided that the Merger Agreement provides that has not been terminated, Purchaser will commence the Offer as promptly as practicable, and in no event later than September October 13, 20172023. Purchaser’s obligation to, TABLE OF CONTENTS and Wonder’s obligation to cause Purchaser to, irrevocably accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer.” herein. Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” herein, the Merger Agreement provides that Purchaser shallwill, and Parent shall Wonder will cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment and pay for all Shares validly tendered and not validly properly withdrawn pursuant to the Offer that Purchaser becomes obligated to purchase pursuant to the Offer promptly after the expiration of the Offer and, as soon as reasonably practicablein any event, and no more than one two business day days after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to the terms expiration of the Merger AgreementOffer. Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) waive, in its sole discretion, in whole or in part, any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in Condition or modify the terms and conditions of the Offer that are in any manner not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminatedAgreement, except that Xxxx’x Blue Apron’s prior written approval is required for Parent or Purchaser to, and for Wonder to permit Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer; • decrease the Offer Price; • decrease the maximum number of Shares sought to be purchased in the Offer or Table otherwise change the Offer so that it is for fewer than all of Contents the outstanding Shares; • extend or otherwise change the Expiration Time, except to the extent permitted or required by the Merger Agreement; • terminate the Offer, except pursuant to the Merger Agreement; • provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act; • amend, change or waive the Minimum Condition (as defined below), the Legal Restraint Condition (as defined below) or the Company Material Adverse Effect Condition; • amend, modify or supplement any of Offer Condition or the other terms of the Offer in any manner adverse to Xxxx holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or delay the consummation of the Offer or prevent, delay or impair the ability of Wonder or Purchaser to consummate the Offer, the Merger or the holders of Sharesother Transactions; or • impose any condition to the Offer other than the Offer Conditions. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to that govern the circumstances under which Purchaser is required to, or permitted to extend the Offer and Parent under which Wonder is required to cause Purchaser to, to extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.provides:
Appears in 1 contract
Merger Agreement. The following is a summary of certain provisions of the Merger Agreement Agreement. The summary does not purport to be complete and all other provisions of the Merger Agreement discussed herein are is qualified in its entirety by reference to the Merger Agreement itself, itself which is incorporated herein by reference. We have has been filed a copy of the Merger Agreement as Exhibit (d)(1) to the Schedule TOTO and is incorporated herein by reference. The Copies of the Merger Agreement may be examined and copies the Schedule TO, and any other filings that Lilly or Purchaser makes with the SEC with respect to the Offer, may be obtained at the places and in the manner set forth in Section 9—“Certain 8 — “Certain Information Concerning Purchaser Lilly and ParentPurchaser.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein in this Section 11 and not otherwise defined in this Offer to Purchase have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and is incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the MergerMerger Agreement. It is not intended to provide modify or supplement any other factual information disclosures about ParentLilly, Purchaser or XxxxMorphic. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement Lilly, Purchaser and Morphic and may be subject to qualifications and limitations agreed upon by such partiesXxxxx, Purchaser and Morphic. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the partiesbetween Lilly, Purchaser and Morphic, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were cases, are qualified by disclosures set forth in a the confidential disclosure letter that was provided delivered by Xxxx Xxxxxxx to Parent Xxxxx and Purchaser but concurrently with the execution of the Merger Agreement (the “Disclosure Letter”). Neither the incorporation by reference of the Merger Agreement nor this summary of the Merger Agreement is not intended to modify or supplement any factual disclosures about Morphic, Lilly or Purchaser in Morphic’s public reports filed with the SEC as part of the Merger AgreementSEC. Investors and stockholders are not third-party beneficiaries under the Merger AgreementAgreement (except that, except with respect after the Effective Time, any one or more of the holders of Shares and any stock options and restricted stock units of Morphic may enforce the provisions in the Merger Agreement relating to their right to receive the Offer Price following the Offer Acceptance Time or to receive consideration in the Merger Consideration applicable to such holder(s), and certain provisions pertaining to limitations of liability if the Termination Fee (as defined below) is paid to Lilly are intended to benefit and will be enforceable by the stockholders of Morphic). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger AgreementJuly 7, 2024, which subsequent information may or may not be fully reflected in the parties’ Lilly, Purchaser and Morphic’s public disclosures. The Offer. The Provided that the Merger Agreement provides that has not been validly terminated in accordance with its terms, Purchaser will commence the Offer no later than September 13, 2017. Purchaser’s obligation to accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer.” Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” the Merger Agreement provides that Purchaser shall, and Parent shall cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to the terms of the Merger Agreement. Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in the terms and conditions of the Offer that are not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminated, except that Xxxx’x prior written approval is required for Parent or Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of Shares. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (practicable, and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective TimeJuly 19, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger2024.
Appears in 1 contract
Samples: Offer to Purchase (ELI LILLY & Co)
Merger Agreement. The following summary of certain provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are qualified by reference to the Merger Agreement itself, which is incorporated herein by reference. We have filed a copy of the Merger Agreement as Exhibit (d)(1) to the Schedule TO. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain 9 — “Certain Information Concerning Purchaser Parent and ParentPurchaser.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and is incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the Merger. It is not intended to provide any other factual information about Parent, Purchaser or Xxxxthe Company, their respective businesses, or the actual conduct of their respective businesses during the period prior to the consummation of the Offer, the Merger or the other transactions contemplated by the Merger Agreement. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures set forth in a confidential disclosure letter schedules that was were provided by Xxxx the Company to Parent and Purchaser but is not filed with the SEC as part of the Merger Agreement. Investors and stockholders are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration TABLE OF CONTENTS (as defined below) and except that the Company has the right, as sole and exclusive agent for and on behalf of its stockholders, to pursue damages, against Parent and/or Purchaser for the loss of the Merger Consideration in the event of any breach of the Merger Agreement by Parent or Purchaser (and investors and stockholders of the Company will not be entitled to pursue such damages on their own behalf). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the parties’ public disclosures. The Offer. The Merger Agreement provides that Purchaser will commence the Offer no later than September 13February 26, 20172024. Purchaser’s obligation to accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions 13 — “Conditions of the Offer.” Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions 13 — “Conditions of the Offer,” the Merger Agreement provides that Purchaser shallwill, and Parent shall will cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon promptly as reasonably practicable, and no more than one business day practicable after the Offer Acceptance TimeTime (and in any event within three business days), pay for such Shares. The Offer will expire at one minute after 11:59 p.m., Eastern TimeTime on March 21, on October 12, 20182024, unless we extend the Offer pursuant to the terms of the Merger Agreement. Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirementsi) any Offer Condition, to increase the amount of cash constituting the Offer Price, (ii) waive any Offer Condition (to the extent permitted under the Merger Agreement and applicable legal requirements) and (iii) make any other changes in the terms and conditions of the Offer that are not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminatedAgreement, except that Xxxx’x the Company’s prior written approval is required for Parent or Purchaser to: • reduce the number of Shares subject to the Offer; • reduce decrease the Offer Price (except as provided in the Merger Agreement)Price; • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer (provided that nothing in the Merger Agreement will limit the ability of Parent and Purchaser to increase the cash consideration payable in the Offer); • decrease the maximum number of Shares sought to be purchased in the Offer; • impose conditions or Table of Contents requirements to the Offer in addition to the Offer Conditions; • otherwise amend, modify or supplement waive the Minimum Tender Condition, the Termination Condition, the HSR Condition or the Governmental Impediment Condition; • amend or modify any of the other terms term of the Offer in a manner that adversely affects, or would reasonably be expected to adversely affect, any manner adverse to Xxxx holder of Shares in its capacity as such; • terminate the Offer or accelerate, extend or otherwise change the holders Expiration Date except as required or provided by the terms of Sharesthe Merger Agreement; or • provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied (unless such condition is waivable by Purchaser or Parent and has been waived, to the extent waivable), Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed)extension, to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer from time to time for the minimum any period required by any law, legal requirement or any interpretation or position of the SEC or its staff or NASDAQ or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.
Appears in 1 contract
Merger Agreement. The following summary of certain provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are qualified by reference to the Merger Agreement itselfitself and the First Amendment to the Merger Agreement, dated as of December 17, 2019 (the “First Amendment”), each of which is incorporated herein by reference. We have filed a A copy of the Merger Agreement is filed as Exhibit (d)(1) to the Schedule TO and a copy of the First Amendment is filed as Exhibit (d)(4) to the Schedule TO. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain Information Concerning Purchaser and Parent.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has and the First Amendment have been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the MergerMerger Agreement. It is They are not intended to provide any other factual information about Parent, Purchaser or XxxxArQule. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among between the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures set forth in a confidential disclosure letter that was provided by Xxxx ArQule to Parent and Purchaser but is not filed with the SEC as part of the Merger AgreementAgreement (the “Disclosure Letter”). Investors and stockholders are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger AgreementDecember 6, 2019, which subsequent information may or may not be fully reflected in the parties’ public disclosures. The Offer. The Merger Agreement provides that Purchaser will commence the Offer no later than September 13, 2017. Purchaser’s obligation to accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer.” Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” the Merger Agreement provides that Purchaser shall, and Parent shall cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to the terms of the Merger Agreement. Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in the terms and conditions of the Offer that are not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminated, except that Xxxx’x prior written approval is required for Parent or Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of Shares. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.
Appears in 1 contract
Merger Agreement. The following summary of certain provisions description of the Merger Agreement set forth below and all other provisions of the Merger Agreement discussed herein are elsewhere in this Offer to Purchase is qualified in its entirety by reference to the Merger Agreement itselfAgreement, a copy of which the Purchaser has included as an exhibit to the Tender Offer Statement on the Schedule TO, which is incorporated herein by reference. We have filed a copy of the Merger Agreement available as Exhibit (d)(1) to the Schedule TO. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in “Section 9—“Certain 9—Certain Information Concerning Purchaser Parent, the Purchaser, Atlas and Parent.Xxxxxxx” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreementabove. The Merger Agreement summary description has been filed with the SEC and incorporated by reference herein included in this Offer to Purchase to provide investors and stockholders you with information regarding the terms of the Offer Merger Agreement and the Merger. It is not intended to provide modify or supplement any other factual information disclosures about Parent, Purchaser the Purchaser, TECU or Xxxxtheir respective affiliates. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreementthe Merger Agreement, were (except made as expressly set forth therein) of specific dates, were made solely for the benefit of the parties to such agreement the Merger Agreement and may not have been intended to be subject statements of fact, but rather, as a method of allocating risk and governing the contractual rights and relationships among the parties to the Merger Agreement. In addition, such representations, warranties and covenants may have been qualified by certain disclosures not reflected in the text of the Merger Agreement and may apply standards of materiality and other qualifications and limitations agreed upon in a way that is different from what may be viewed as material by such partiesTECU’s shareholders. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and or any description descriptions thereof contained or incorporated by reference hereinin this summary, it is important to bear in mind that such representations, warranties and covenants or any descriptions were negotiated with not intended by the principal purpose of allocating risk among the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject parties to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures set forth in a confidential disclosure letter that was provided by Xxxx to Parent and Purchaser but is not filed with the SEC as part of the Merger Agreement. Investors and stockholders are not third-party beneficiaries under the Merger Agreement, except with respect Agreement to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as be characterizations of the actual state of facts or circumstances described thereinconditions of Parent, the Purchaser, TECU or their respective affiliates. Information Moreover, information concerning the subject matter of such representations, the representations and warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since or may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the parties’ public disclosures. The Offer. The Merger Agreement provides that Purchaser will commence For the Offer no later than September 13foregoing reasons, 2017. Purchaser’s obligation to accept for payment the representations, warranties and pay for Shares validly tendered covenants or any descriptions of those provisions should not be read alone and should instead be read in conjunction with the other information contained in the Offer is subject to the satisfaction of the Minimum Tender Condition reports, statements and the other Offer Conditions filings that are described in Section 13—“Conditions of the Offer.” Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” the Merger Agreement provides that Purchaser shall, and Parent shall cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to the terms of the Merger Agreement. Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in the terms and conditions of the Offer that are not inconsistent TECU publicly files with the SEC. Capitalized terms of not otherwise defined herein shall have the Merger Agreement and meanings ascribed to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminated, except that Xxxx’x prior written approval is required for Parent or Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided them in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of Shares. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.
Appears in 1 contract
Merger Agreement. The following is a summary of certain material provisions of the Merger Agreement and all other provisions Agreement. The following description of the Merger Agreement discussed herein are does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement itselfAgreement, which is incorporated herein by reference. We have filed a copy of the Merger Agreement which is filed as Exhibit (d)(1) to the Schedule TOTO and is incorporated herein by reference. The For a complete understanding of the Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain Information Concerning Purchaser and Parent.” Stockholders and other interested parties should Agreement, you are encouraged to read the Merger Agreement for a more complete description full text of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the Merger. It is not intended to provide you with any other factual information about Parent, Purchaser or XxxxSteinway. Such information can be found elsewhere in this Offer to Purchase. The Merger Agreement has been filed solely to inform investors of its terms. The Merger Agreement contains representations, warranties and covenants contained in the Merger Agreement covenants, which were made only as of specified dates for the purposes of such agreementagreement and as of specific dates, were (except as expressly set forth therein) made solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference hereinare intended Table of Contents not as statements of fact, it is important but rather as a way of allocating risk to bear in mind that one of the parties if those statements prove to be inaccurate. In addition, such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were have been qualified by certain disclosures set forth not reflected in a confidential disclosure letter that was provided by Xxxx to Parent and Purchaser but is not filed with the SEC as part text of the Merger AgreementAgreement and may apply standards of materiality in a way that is different from what may be viewed as material by holders of Shares or other investors in Steinway. Investors The holders of Shares and stockholders other investors are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors Agreement and stockholders should not rely on such the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter conditions of such representationsSteinway, warranties and covenantsParent, which do not purport to be accurate as Purchaser or any of the date of this Offer to Purchase, may have changed since the date of the Merger Agreement, which subsequent information may their respective subsidiaries or may not be fully reflected in the parties’ public disclosuresaffiliates. The Offer. The Merger Agreement provides that Purchaser will commence the Offer as promptly as reasonably practicable, but in no event later than September 13July 15, 20172013. Purchaser’s The obligation of Purchaser to, and of Parent to cause Purchaser to, accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are conditions described in Section 13—“Conditions 15 — “Certain Conditions of the Offer.” (the “Offer Conditions”). Subject to the satisfaction of the Minimum Tender Condition (as defined in Section 15 — “Certain Conditions of the Offer”) and the other Offer Conditions conditions that are described in Section 13—“Conditions 15 — “Certain Conditions of the Offer,” the Merger Agreement provides that Purchaser shallwill, and Parent shall will cause Purchaser to, immediately after the accept for payment and pay for (subject to any applicable Expiration Date, as it may be extended withholding taxes pursuant to the terms of the Merger Agreement, irrevocably accept for payment ) all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day promptly after the expiration of the Offer (as it may be extended and re-extended as described below and in compliance with applicable laws) and in any event in compliance with Rule 14e-1(c) under the Exchange Act. The time of such acceptance for payment of Shares is referred to herein as the “Acceptance Time.” Pursuant to the Merger Agreement, pay for such Shares. The Purchaser expressly reserved the right to waive any Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to Conditions or modify the terms of the Merger Agreement. Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in the terms and conditions of the Offer that are not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminatedOffer, except that Xxxx’x Steinway’s prior written approval is required for Parent or Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided in the Merger Agreement)Price; • changeamend, modify or waive the Minimum Tender Condition; • impose any condition add to the Offer Conditions or amend, modify or supplement any Offer Conditions in addition any manner adverse to the conditions set forth in Section 13—“Conditions holders of the Offer;” Shares; • terminate, extend or otherwise change amend or modify the expiration date of the Offer (except as provided Offer, other than in accordance with the Merger Agreement); • change the form of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of the Shares; or • provide any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act. In additionThe Offer is initially scheduled to expire at 11:59 p.m., Purchaser New York City time on August 21, 2013 (sometimes referred to herein as the “initial Expiration Date”), but may be extended and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxxre-extended as described below. The Merger Agreement contains provisions provides that if at the initial or at any subsequent Expiration Date of the Offer any Offer Condition (other than the Minimum Tender Condition) is not satisfied or, to govern the circumstances under which extent waivable in accordance with the terms of the Merger Agreement, has not been waived by Purchaser is required toor Parent, Purchaser will, and Parent is required to will cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser toi) extend the Offer for additional one or more periods in consecutive increments of up to ten (10) five business days per extension (or such longer if agreed), period as the parties to permit such Offer Condition to be satisfied; the Merger Agreement may agree) and • Purchaser has agreed to (and Parent has agreed to cause Purchaser toii) extend the Offer on one or more occasions for the minimum period required by any lawrule, regulation, interpretation or position of the SEC or its the staff thereof applicable to the Offer. However; provided, however, that Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of Termination Date. In addition, the Merger Agreement in accordance with its terms provides that if at the initial or at any subsequent Expiration Date of the Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Outside Date. Minimum Tender Condition shall not have been satisfied, Purchaser has agreed that it will (may, and if requested by Steinway, Purchaser shall and Parent will cause Purchaser to) promptly, extend the Offer for one or Table of Contents more periods in consecutive increments of five business days; provided, however, that Purchaser shall not be required to extend the Offer by more than 20 business days unless requested or approved by Steinway; provided, further, that Purchaser is not required to extend the Offer beyond the Termination Date. The Merger Agreement provides that Purchaser shall irrevocably and unconditionally terminate the Offer upon if (i) at any termination then-scheduled expiration of the Offer (a) each condition to the Offer has been satisfied (other than the Minimum Tender Condition), (b) the Minimum Tender Condition shall not have been satisfied and (c) no further extensions or re-extensions of the Offer are permitted under the Merger AgreementAgreement or (ii) the Merger Agreement is terminated pursuant to its terms. If the Offer is terminated or withdrawn by Purchaser or the Merger Agreement is terminated pursuant to its terms, and then Purchaser will must promptly return, and will shall cause any depository depositary acting on behalf of Purchaser to return, in accordance with applicable law, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion termination of the Offer pursuant to clause (i) of this paragraph is referred to herein as the “Offer Termination,” and subject the date on which the Offer Termination occurs is referred to herein as the “Offer Termination Date.” Pursuant to the terms and conditions Merger Agreement, the Offer Termination will give rise to a right of termination of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.
Appears in 1 contract
Merger Agreement. The following is a summary of certain material provisions of the Merger Agreement and all other provisions Agreement. The following description of the Merger Agreement discussed herein are does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement itselfAgreement, which is incorporated herein by reference. We have filed a copy of the Merger Agreement which is filed as Exhibit (d)(1) to the Schedule TOTO filed with the SEC, and is incorporated herein by reference. The For a complete understanding of the Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain Information Concerning Purchaser and Parent.” Stockholders and other interested parties should Agreement, you are encouraged to read the Merger Agreement for a more complete description full text of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the Merger. It is not intended to provide you with any other factual information about Parent, Purchaser or XxxxSteinway. Such information can be found elsewhere in this Offer to Purchase. The Merger Agreement has been filed solely to inform investors of its terms. The Merger Agreement contains representations, warranties and covenants contained in the Merger Agreement covenants, which were made only as of specified dates for the purposes of such agreementagreement and as of specific dates, were (except as expressly set forth therein) made solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference hereinare intended not as statements of fact, it is important but rather as a way of allocating risk to bear in mind that one of the parties if those statements prove to be inaccurate. In addition, such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were have been qualified by certain disclosures set forth not reflected in a confidential disclosure letter that was provided by Xxxx to Parent and Purchaser but is not filed with the SEC as part text of the Merger AgreementAgreement and may apply standards of materiality in a way that is different from what may be viewed as material by holders of Shares or other investors in Steinway. Investors The holders of Shares and stockholders other investors are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors Agreement and stockholders should not rely on such the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter conditions of such representationsSteinway, warranties and covenantsParent, which do not purport to be accurate as Purchaser or any of the date of this Offer to Purchase, may have changed since the date of the Merger Agreement, which subsequent information may their respective subsidiaries or may not be fully reflected in the parties’ public disclosuresaffiliates. The Offer. The Merger Agreement provides that Purchaser will commence the Offer as promptly as reasonably practicable, but in no event later than September 13August 21, 20172013. Purchaser’s The obligation of Purchaser to, and of Parent to cause Purchaser to, accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are conditions described in Section 13—“Conditions 15—“Certain Conditions of the Offer.” (the “Offer Conditions”). Subject to the satisfaction of the Minimum Tender Condition (as defined in Section 15—“Certain Conditions of the Offer”) and the other Offer Conditions conditions that are described in Section 13—“Conditions 15—“Certain Conditions of the Offer,” the Merger Agreement provides that Purchaser shallwill, and Parent shall will cause Purchaser to, immediately after the accept for payment and pay for (subject to any applicable Expiration Date, as it may be extended withholding taxes pursuant to the terms of the Merger Agreement, irrevocably accept for payment ) all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day promptly after the expiration of the Offer (as it may be extended and re-extended as described below and in compliance with applicable laws) and in any event in compliance with Rule 14e-1(c) under the Exchange Act. The time of such acceptance for payment of Shares is referred to herein as the “Acceptance Time.” Pursuant to the Merger Agreement, pay for such Shares. The Purchaser expressly reserved the right to waive any Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to Conditions or modify the terms of the Merger Agreement. Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in the terms and conditions of the Offer that are not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminatedOffer, except that Xxxx’x Steinway’s prior written approval is required for Parent or Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided in the Merger Agreement)Price; • changeamend, modify or waive the Minimum Tender Condition; • impose any condition add to the Offer Conditions or amend, modify or supplement any Offer Conditions in addition any manner adverse to the conditions set forth in Section 13—“Conditions holders of the Offer;” Shares; • terminate, extend or otherwise change amend or modify the expiration date of the Offer (except as provided Offer, other than in accordance with the Merger Agreement); • change the form of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of the Shares. In addition, Purchaser and Parent may not waive ; or • provide any “subsequent offering period” within the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent meaning of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase Rule 14d-11 under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the MergerExchange Act.
Appears in 1 contract
Merger Agreement. The following is a summary of certain the material provisions of the Merger Agreement and all other provisions Agreement. The following description of the Merger Agreement discussed herein are does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement itselfAgreement, a copy of which is attached hereto as Annex A and incorporated herein by reference. We have filed For a copy complete understanding of the Merger Agreement as Exhibit (d)(1) Agreement, you are strongly encouraged to read and understand the Schedule TO. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain Information Concerning Purchaser and Parent.” Stockholders and other interested parties should read the Merger Agreement for a more complete description full text of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein provided solely to provide inform investors and stockholders with information regarding the terms of the Offer and the Merger. It is not intended to provide any other factual information about Parent, Purchaser or Xxxxits terms. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreementthat agreement and as of specific dates, were (except as expressly set forth therein) made solely for the benefit of the parties to such agreement the Merger Agreement and may be subject intended not as statements of fact, but rather as a way of allocating risk to qualifications and limitations agreed upon by such partiesone of the parties if those statements prove to be inaccurate. In particularaddition, in reviewing the representations, warranties and covenants contained may have been qualified by certain disclosures not reflected in the text of the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard apply standards of materiality in a way that is different from those generally applicable to stockholders what may be viewed as material by shareholders of, or Table of Contents other investors in, O’Charley’s. O’Charley’s shareholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures set forth in a confidential disclosure letter that was provided by Xxxx to Parent and Purchaser but is not filed with the SEC as part of the Merger Agreement. Investors and stockholders other investors are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors Agreement and stockholders should not rely on such the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or circumstances described therein. Information concerning conditions of O’Charley’s, Parent, the subject matter Purchaser or any of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger Agreement, which subsequent information may their respective subsidiaries or may not be fully reflected in the parties’ public disclosuresaffiliates. The Offer. The Merger Agreement provides that for the commencement of the Offer as promptly as practicable, but in no event later than February 27, 2012. The Offer was commenced on February 27, 2012. The obligations of the Purchaser will to (and the obligations of Parent to cause the Purchaser to) commence the Offer no later than September 13, 2017. Purchaser’s obligation and to accept for payment payment, and pay for for, Shares validly tendered in pursuant to the Offer is are subject to the satisfaction or waiver of the Minimum Tender Condition and the other Offer Conditions certain conditions that are described in Section 13—“Conditions 15 – “Certain Conditions of the Offer.” Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” the The Merger Agreement provides that Purchaser shalleach O’Charley’s shareholder who validly tenders Shares in the Offer will receive $9.85 for each Share tendered, and Parent shall cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant net to the terms of shareholder in cash, without interest and less any required withholding tax. Parent and the Merger Agreement, irrevocably accept for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to the terms of the Merger Agreement. Purchaser expressly reserves reserve the right to waive (any condition to the extent permitted under applicable legal requirements) any Offer Condition(as described in Section 15 – “Certain Conditions of the Offer”), to increase the amount of cash constituting the Offer Price, Price or to make any other changes in to the terms and conditions of the Offer that are not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminatedOffer, except that Xxxx’x without the prior written approval is required for Parent or consent of O’Charley’s, the Purchaser toshall not: • reduce the number of Shares subject to the Offer; • reduce decrease the Offer Price (except as provided in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer; • decrease the number of Shares subject to or Table sought to be purchased in the Offer; • impose conditions on the Offer in addition to the conditions described in this Offer to Purchase (see Section 15 – “Certain Conditions of Contents the Offer”); • otherwise amend, modify waive or amend the Minimum Condition; • amend or supplement any of the other terms conditions described in this Offer to Purchase or any other term of the Offer in any a manner adverse to Xxxx or the holders of the Shares. In addition, other than Parent, the Purchaser and Parent may not waive any of their respective affiliates; or • extend or otherwise change the HSR Condition, the Governmental Impediment Condition Expiration Date except as required or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required permitted by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.
Appears in 1 contract
Samples: Offer to Purchase (Fidelity National Financial, Inc.)
Merger Agreement. The following summary of certain provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are qualified by reference to the Merger Agreement itself, which is incorporated herein by reference. We have filed a A copy of the Merger Agreement is filed as Exhibit (d)(1) to the Schedule TOhereto. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain Information Concerning Purchaser and Parent.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the MergerMerger Agreement. It is not intended to provide any other factual information about ParentLilly, Purchaser or XxxxARMO. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among between the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures set forth in a confidential disclosure letter that was provided by Xxxx ARMO to Parent and Purchaser Lilly but is not filed with the SEC as part of the Merger Agreement. Investors and stockholders are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the parties’ public disclosures. The Offer. The Merger Agreement provides that Purchaser will commence the Offer as promptly as practicable, and in no event later than September 13May 23, 20172018. Purchaser’s obligation to, and Xxxxx’x obligation to cause Purchaser to, accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer.” below. Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” below, the Merger Agreement provides that Purchaser shallwill, and Parent shall Xxxxx will cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment and pay for all Shares validly tendered and not validly properly withdrawn pursuant to the Offer and, that Purchaser becomes obligated to purchase pursuant to the Offer as soon as reasonably practicable, and no more than one practicable after the expiration of the Offer (which shall be the next business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend expiration of the Offer pursuant to absent extenuating circumstances and, in any event, no more than three business days after the terms expiration of the Merger AgreementOffer). Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) waive, in its sole discretion, in whole or in part, any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in the terms and conditions of the Offer that are not inconsistent with or modify the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminatedOffer, except that Xxxx’x ARMO’s prior written approval is required for Parent or Purchaser to, and for Lilly to permit Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of Shares. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.
Appears in 1 contract
Samples: Offer to Purchase (Lilly Eli & Co)
Merger Agreement. The following is a summary of certain material provisions of the Merger Agreement and all other provisions Agreement. The following description of the Merger Agreement discussed herein are does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement itselfAgreement, which is incorporated herein by reference. We have filed a copy of the Merger Agreement which is filed as Exhibit (d)(1) to the Schedule TOTO filed with the SEC, and is incorporated herein by reference. The For a complete understanding of the Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain Information Concerning Purchaser and Parent.” Stockholders and other interested parties should Agreement, you are encouraged to read the Merger Agreement for a more complete description full text of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the Merger. It is not intended to provide you with any other factual information about Parent, Purchaser or Xxxxthe Company. Such information can be found elsewhere in this Offer to Purchase. The Merger Agreement has been filed solely to inform investors of its terms. The Merger Agreement contains representations, warranties and covenants contained in the Merger Agreement which were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement the Merger Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing matters as facts, and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard standards of materiality applicable to the contracting parties that are different from those generally applicable to stockholders what may be viewed as material by holders of Shares. Additionally, information concerning the subject matter of the representations and reports and documents filed with warranties may change after the SEC, and in some cases were qualified by disclosures set forth in a confidential disclosure letter that was provided by Xxxx to Parent and Purchaser but is not filed with the SEC as part date of the Merger Agreement. Investors The holders of Shares and stockholders other investors are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors Agreement and stockholders should not rely on such the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as conditions of the date Company, Parent, Purchaser or any of this Offer to Purchase, may have changed since the date of the Merger Agreement, which subsequent information may their respective subsidiaries or may not be fully reflected in the parties’ public disclosuresaffiliates. The Offer. The Merger Agreement provides that Purchaser will commence the Offer no later than September 13as promptly as reasonably practicable, 2017but in any event within 10 business days after the Merger Agreement is executed. Purchaser’s The obligation of Purchaser to, and of Parent to cause Purchaser to, accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are conditions described in Section 13—“Conditions 15—"Certain Conditions of the Offer.” " (the "Offer Conditions"). Subject to the satisfaction of the Minimum Tender Condition (as defined in Section 15—"Certain Conditions of the Offer") and the other Offer Conditions conditions that are described in Section 13—“Conditions 15—"Certain Conditions of the Offer,” the Merger Agreement provides that " Purchaser shallwill, and Parent shall will cause Purchaser to, immediately after following the expiration of the Offer (if each Offer Condition shall have been satisfied, or if permitted by the Merger Agreement, waived at such time) accept for payment all Shares that Purchaser becomes obligated to purchase pursuant to the Offer and following such acceptance, as soon as practicable on the business day that immediately follows the date on which the Offer expired, pay for all such Shares (subject to any applicable Expiration Date, withholding taxes pursuant to the Merger Agreement) (as it may be extended pursuant and re-extended as described below and in compliance with applicable laws) in compliance with Rule 14e-1(c) under the Exchange Act. Pursuant to the Merger Agreement, Purchaser expressly reserved the right to waive any Offer Conditions or modify the terms of the Merger Agreement, irrevocably accept for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to the terms of the Merger Agreement. Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in the terms and conditions of the Offer that are not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminatedOffer, except that Xxxx’x the Company's prior written approval is required for Parent or Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided in the Merger Agreement)Price; • changeamend, modify or waive the Minimum Tender Condition; • impose any condition add to the Offer Conditions or amend, modify or supplement any Offer Conditions in addition any manner adverse to the conditions set forth in Section 13—“Conditions holders of Shares; • terminate, extend or otherwise amend or modify the Expiration Time of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided , other than in accordance with the Merger Agreement); • change the form of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of the Shares; or • provide any "subsequent offering period" within the meaning of Rule 14d-11 under the Exchange Act. In additionThe Offer is initially scheduled to expire at 11:59 p.m., Purchaser New York City time, on December 2, 2013, but may be extended and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxxre-extended as described below. The Merger Agreement contains provisions provides that if at the initial or at any subsequent Expiration Time of the Offer any Offer Condition (other than the Minimum Tender Condition) is not satisfied or, to govern the circumstances under which extent waivable in accordance with the terms of the Merger Agreement, has not been waived by Purchaser is required toor Parent, Purchaser will, and Parent is required to will cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser toi) extend the Offer for additional one or more periods in consecutive increments of up to ten (10) five business days per extension (or such longer if agreed), period as the parties to permit such Offer Condition to be satisfied; the Merger Agreement may agree) and • Purchaser has agreed to (and Parent has agreed to cause Purchaser toii) extend the Offer on one or more occasions for the minimum period required by any lawrule, regulation, interpretation or position of the SEC or its the staff thereof applicable to the Offer. However; provided, however, that Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of Termination Date. In addition, the Merger Agreement in accordance with its terms provides that if at the initial or at any subsequent Expiration Time of the Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Outside Date. Minimum Tender Condition shall not have been satisfied, Purchaser has agreed that it may, and if requested by the Company, Purchaser will (and Parent will cause Purchaser to) promptly, extend the Offer for one or more periods in consecutive increments of five business days; provided, however, that Purchaser shall not be required to extend the Offer by more than 20 business days unless requested or approved by the Company; provided, further, that Purchaser is not required to extend the Offer beyond the Termination Date. The Merger Agreement provides that Purchaser shall irrevocably and unconditionally terminate the Offer upon if (i) at any termination then-scheduled expiration of the Offer (a) each condition to the Offer has been satisfied or waived (other than the Minimum Tender Condition), (b) the Minimum Tender Condition shall not have been satisfied and (c) no further extensions or re-extensions of the Offer are permitted or required under the Merger AgreementAgreement or (ii) the Merger Agreement is terminated pursuant to its terms. If the Offer is terminated or withdrawn by Purchaser or the Merger Agreement is terminated pursuant to its terms, and then Purchaser will must promptly return, and will shall cause any depository depositary acting on behalf of Purchaser to return, in accordance with applicable law, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion termination of the Offer and subject pursuant to clause (i) of this paragraph is referred to herein as the "Offer Termination." Pursuant to the terms and conditions Merger Agreement, the Offer Termination will give rise to a right of termination of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.
Appears in 1 contract
Merger Agreement. The following summary of certain provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are qualified by reference to the Merger Agreement itself, which is incorporated herein by reference. We have filed a A copy of the Merger Agreement is filed as Exhibit (d)(1) to of the Schedule TO. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain Information Concerning Purchaser and Parent.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the MergerMerger Agreement. It is not intended to provide any Table of Contents other factual information about ParentLilly, Purchaser or XxxxDermira. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among between the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures set forth in a confidential disclosure letter that was provided by Xxxx Xxxxxxx to Parent and Purchaser Lilly but is not filed with the SEC as part of the Merger AgreementAgreement (the “Disclosure Letter”). Investors and stockholders are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the parties’ public disclosures. The Offer. The Provided that the Merger Agreement provides has not been terminated and provided further that Dermira is prepared to file with the SEC, and to disseminate to holders of Dermira shares, the Schedule 14D-9 on the same date as Purchaser commences the Offer, Purchaser will commence the Offer as promptly as practicable, and in no event later than September 13January 30, 20172020. Purchaser’s obligation to, and Xxxxx’x obligation to cause Purchaser to, accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer.” below. Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” below, the Merger Agreement provides that Purchaser shallwill, and Parent shall Lilly will cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment and pay for all Shares validly tendered and not validly properly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one that Purchaser becomes obligated to purchase pursuant to the Offer promptly after the expiration of the Offer (which shall be the next business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend expiration of the Offer pursuant to absent extenuating circumstances and, in any event, no more than three business days after the terms expiration of the Merger AgreementOffer). Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) waive, in its sole discretion, in whole or in part, any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in or modify the terms and conditions of the Offer that are Offer, in any manner not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminatedAgreement, except that Xxxx’x Xxxxxxx’s prior written approval is required for Parent or Purchaser to, and for Lilly to permit Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price Price; • waive, amend or modify the Minimum Tender Condition or the Termination Condition (as defined below); • add to the Offer Conditions or impose any other conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Shares; • except as otherwise provided in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • terminate, extend or otherwise change amend or modify the expiration date of the Offer (except as provided in the Merger Agreement)Offer; • change the form or terms of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of Shares. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition ; or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, provide for any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement “subsequent offering period” in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination Rule 14d-11 of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the MergerExchange Act.
Appears in 1 contract
Samples: Offer to Purchase (ELI LILLY & Co)
Merger Agreement. The following summary of certain provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are qualified by reference to the Merger Agreement itself, which is incorporated herein by reference. We have filed a A copy of the Merger Agreement is filed as Exhibit (d)(1) to the Schedule TO. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain Information Concerning Purchaser and Parent.” Stockholders Table of Contents and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the MergerMerger Agreement. It is not intended to provide any other factual information about Parent, Purchaser or XxxxPandion. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among between the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures set forth in a confidential disclosure letter that was provided by Xxxx Pandion to Parent and Purchaser but is not filed with the SEC as part of the Merger AgreementAgreement (the “Disclosure Letter”). Investors and stockholders are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger AgreementFebruary 24, 2021, which subsequent information may or may not be fully reflected in the parties’ public disclosures. The Offer. The If the Merger Agreement provides that has not been terminated and Pandion is prepared to file with the SEC, and to disseminate to holders of Pandion shares, the Schedule 14D-9 on the same date as Purchaser will commences the Offer, Purchaser has agreed to commence the Offer as promptly as practicable, and in no event later than September 13March 10, 20172021. Purchaser’s obligation to, and Xxxxxx’s obligation to cause Purchaser to, accept for payment and pay for Shares validly tendered in the Offer is subject only to the satisfaction or, to the extent waivable by Parent or Purchaser, waiver of each of the Minimum Tender Condition and the other Offer Conditions (as defined below in Section 15—“Conditions of the Offer”) that are described in Section 13—“Conditions of below. On the Offer.” Subject terms and subject to the satisfaction of the Minimum Tender Condition conditions and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” the Merger Agreement provides that Agreement, Purchaser shallwill, and Parent shall will cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to the terms of Offer as promptly as practicable on or after the Merger AgreementExpiration Date. Parent and Purchaser expressly reserves reserve the right to waive (to any of the extent permitted under applicable legal requirements) any Offer ConditionConditions, to increase the amount of cash constituting the Offer Price, Price or to make any other changes in the terms and conditions of the Offer that are not inconsistent with the terms of the Merger Agreement Offer; provided that, unless otherwise previously approved by Pandion in writing, Parent and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminated, except that Xxxx’x prior written approval is required for Parent or Purchaser towill not: • reduce the number of Shares subject to the Offer; • reduce decrease the Offer Price (except as provided in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer; • decrease the maximum number of Shares subject to or Table of Contents sought to be purchased in the Offer; • otherwise amendimpose conditions on the Offer in addition to the Offer Conditions; • waive, modify or supplement amend the Minimum Condition or the Antitrust and Judgment/Illegality Conditions (other than the condition that there not be instituted, pending or threatened in writing any proceeding, by a governmental authority in any jurisdiction in which Parent or its affiliates operate their businesses or own assets, seeking a Non-Required Remedy (as defined in “—Standard of the Efforts” below), which may be waived by Parent and Purchaser in their sole discretion); • amend any other terms term of the Offer in any a manner that is materially adverse to Xxxx the Pandion stockholders; • extend or otherwise change the holders of Shares. In addition, Purchaser and Parent may not waive Expiration Date except as required or permitted by the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination terms of the Merger Agreement in accordance with its terms and as described below; or • provide any “subsequent offering period” (or any extension thereof) within the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination meaning of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase Rule 14d-11 promulgated under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the MergerExchange Act.
Appears in 1 contract
Merger Agreement. The following is a summary of certain provisions of the Merger Agreement Agreement. This summary does not purport to be complete and all other provisions of the Merger Agreement discussed herein are is qualified in its entirety by reference to the Merger Agreement itself, which is incorporated herein by referencePurchaser has filed as an exhibit to this Schedule TO. We have filed a copy Copies of the Merger Agreement as Exhibit (d)(1) and this Schedule TO, and any other filings that Dassault Systèmes, Parent or Purchaser makes with the SEC with respect to the Schedule TO. The Merger Agreement may be examined and copies Offer or the Merger, may be obtained at the places and in the manner set forth in Section 9—“Certain 9—"Certain Information Concerning Purchaser Dassault Systèmes, Parent and Parent.” Purchaser" of this Offer to Purchase. Stockholders of Exa and other interested parties should read the Merger Agreement in its entirety for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed provided solely to inform investors of its terms. Except for its status as the contractual document that establishes and governs the legal relations among the parties with the SEC and incorporated by reference herein respect to provide investors and stockholders with information regarding the terms of the Offer and the Merger. It is , Parent and Exa do not intended to provide any other factual information about Parent, Purchaser or Xxxx. The representations, warranties and covenants contained in intend for the Merger Agreement were made only as to be a source of specified dates for factual, business or operational information about the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit companies. The Merger Agreement contains representations and warranties of the parties to such agreement as of specific dates and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose have been used for purposes of allocating risk among between the parties, parties rather than establishing matters as facts. Such representationsThose representations and warranties were made solely for the benefit of the other parties to the Merger Agreement and are qualified in several important respects, which should be considered by stockholders as they read them in the Merger Agreement. The representations and warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents are qualified in their entirety by certain information filed by Exa with the SECSEC prior to the date of the Merger Agreement, and in some cases were qualified as well as by disclosures set forth in a confidential disclosure letter schedules that was provided by Xxxx Exa delivered to Parent and Purchaser but is not filed in connection with the SEC as part execution of the Merger Agreement. Investors , and are qualified by contractual standards of materiality that may differ from what stockholders are not third-party beneficiaries under the Merger Agreement, except with respect consider to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described thereinbe material. Information concerning the subject matter of such representations, the representations and warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger Agreement. For the foregoing reasons, which subsequent information may or may stockholders and other investors should not be fully reflected rely on the representations and warranties contained in the parties’ public disclosures. The Offer. The Merger Agreement provides that Purchaser will commence the Offer no later than September 13, 2017. Purchaser’s obligation to accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer.” Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” the Merger Agreement provides that Purchaser shall, and Parent shall cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms accurate statements as of the Merger Agreement, irrevocably accept for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to the terms of the Merger Agreement. Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in the terms and conditions of the Offer that are not inconsistent with the terms date of the Merger Agreement or any other date. Capitalized terms used in this Section 12(a)—"Merger Agreement" of this Offer to Purchase and to terminate not otherwise defined have the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminated, except that Xxxx’x prior written approval is required for Parent or Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided respective meanings assigned thereto in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of Shares. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.
Appears in 1 contract
Merger Agreement. The following summary of certain provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are qualified by reference to the Merger Agreement itself, which is incorporated herein by reference. We have filed a A copy of the Merger Agreement is filed as Exhibit (d)(1) to the Schedule TOhereto. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain Information Concerning Purchaser and Parent.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the MergerMerger Agreement. It is not intended to provide any other factual information about ParentLilly, Purchaser or XxxxLoxo Oncology. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among between the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures set forth in a confidential disclosure letter that was provided by Xxxx Loxo Oncology to Parent and Purchaser Lilly but is not filed with the SEC as part of the Merger AgreementAgreement (the “Disclosure Letter”). Investors and stockholders are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the parties’ public disclosures. The Offer. The Provided that the Merger Agreement provides has not been terminated and provided further that Loxo Oncology is prepared to file with the SEC, and to disseminate to holders of Loxo Oncology shares, the Schedule 14D-9 on the same date as Purchaser commences the Offer, Purchaser will commence the Offer as promptly as practicable, and in no event later than September 13January 22, 20172019. Purchaser’s obligation to, and Xxxxx’x obligation to cause Purchaser to, accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer.” below. Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” below, the Merger Agreement provides that Purchaser shallwill, and Parent shall Lilly will cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment and pay for all Shares validly tendered and not validly properly withdrawn pursuant to the Offer and, that Purchaser becomes obligated to purchase pursuant to the Offer as soon as reasonably practicable, and no more than one practicable after the expiration of the Offer (which shall be the next business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend expiration of the Offer pursuant to absent extenuating circumstances and, in any event, no more than three business days after the terms expiration of the Merger AgreementOffer). Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) waive, in its sole discretion, in whole or in part, any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in or modify the terms and conditions of the Offer that are Offer, in any manner not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminatedAgreement, except that Xxxx’x Loxo Oncology’s prior written approval is required for Parent or Purchaser to, and for Lilly to permit Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided in the Merger Agreement)Price; • changewaive, amend or modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of Shares. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, (as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreeddefined below), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.;
Appears in 1 contract
Samples: Offer to Purchase (Lilly Eli & Co)
Merger Agreement. The following summary of certain provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are qualified by reference to the Merger Agreement itself, which is incorporated herein by reference. We have filed a copy of the Merger Agreement as Exhibit (d)(1) to the Schedule TO. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain 8 — “Certain Information Concerning Purchaser Parent and ParentPurchaser.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the Merger. It is not intended to provide any other factual information about Parent, Purchaser or Xxxx. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures set forth in a confidential disclosure letter that was provided by Xxxx to Parent and Purchaser but is not filed with the SEC as part of the Merger Agreement. Investors and stockholders are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the parties’ public disclosures. The Offer. The Merger Agreement provides that Purchaser will commence the Offer no later than September 13on or before October 15, 20172014. Purchaser’s obligation to accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions 15 — “Conditions of the Offer.” Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions 15 — “Conditions of the Offer,” the Merger Agreement provides that Purchaser shallwill, and Parent shall will cause Purchaser to, immediately accept for payment and pay for all Shares validly tendered and not validly withdrawn in the Offer as soon as practicable after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment all Shares validly tendered and not validly withdrawn pursuant to in compliance with applicable law. To the Offer andextent permitted by applicable law, as soon as reasonably practicable, Parent and no more than one business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to the terms of the Merger Agreement. Purchaser expressly reserves reserve the right to waive (to the extent permitted under applicable legal requirements) any Offer Condition, to increase the amount of cash constituting the Offer Price, Price or to make any other changes in the terms and conditions of the Offer that are not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminatedOffer, except that Xxxx’x Move’s prior written approval is required for Parent or and Purchaser to: • reduce other than in the number case of Shares subject any equitable adjustment relating to any reclassification, stock split, stock dividend or recapitalization by the Offer; • reduce Company, decrease the Offer Price (except as provided in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement)Price; • change the form of consideration payable in the Offer; • decrease the number of Shares sought to be purchased in the Offer; • impose additional conditions on the Offer or Table amend any Offer Condition in a manner that is adverse to the holders of Contents Shares; • otherwise amend, modify waive or supplement amend the Minimum Condition; • amend any of the other terms term of the Offer in any a manner that is adverse to Xxxx or the holders of Shares. In addition, Purchaser and Parent may not waive ; • extend or otherwise change the HSR Condition, the Governmental Impediment Condition Expiration Date except as required or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required permitted by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf ; or • provide a “subsequent offering period” within the meaning of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase Rule 14d-11 promulgated under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the MergerExchange Act.
Appears in 1 contract
Samples: Offer to Purchase (News Corp)
Merger Agreement. The following is a summary of certain material provisions of the Merger Agreement and all other provisions Agreement. The following description of the Merger Agreement discussed herein are does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement itselfAgreement, which is incorporated herein by reference. We have filed a copy of the Merger Agreement which is filed as Exhibit (d)(1) to the Schedule TOTO filed with the SEC, and is incorporated herein by reference. The For a complete understanding of the Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain Information Concerning Purchaser and Parent.” Stockholders and other interested parties should Agreement, you are encouraged to read the Merger Agreement for a more complete description full text of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the Merger. It is not intended to provide you with any other factual information about Parent, Purchaser or XxxxFusion-io. Such information can be found elsewhere in this Offer to Purchase. The Merger Agreement has been filed solely to inform investors of its terms. The Merger Agreement contains representations, warranties and covenants contained in the Merger Agreement covenants, which were made only as of specified dates for the purposes of such agreementagreement and as of specific dates, were (except as expressly set forth therein) made solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference hereinare intended not as statements of fact, it is important but rather as a way of allocating risk to bear in mind that one of the parties if those statements prove to be inaccurate. In addition, such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were have been qualified by certain disclosures set forth not reflected in a confidential disclosure letter that was provided by Xxxx to Parent and Purchaser but is not filed with the SEC as part text of the Merger AgreementAgreement and may apply standards of materiality in a way that is different from what may be viewed as material by holders of Shares or other investors in Fusion-io. Investors The holders of Shares and stockholders other investors are not third-party beneficiaries under the Merger Agreement, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors Agreement and stockholders should not rely on such the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter conditions of such representationsFusion-io, warranties and covenantsParent, which do not purport to be accurate as Purchaser or any of the date of this Offer to Purchase, may have changed since the date of the Merger Agreement, which subsequent information may their respective subsidiaries or may not be fully reflected in the parties’ public disclosuresaffiliates. The Offer. The Merger Agreement provides that Purchaser will commence the Offer no sooner than five business days or later than September 13, 2017ten business days following the date of the Merger Agreement. Purchaser’s The obligation of Purchaser to accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are conditions described in Section 13—“Conditions 15—"Certain Conditions of the Offer," which we refer to collectively as the "Offer Conditions.” " Subject to the satisfaction of the Minimum Tender Condition (as defined in Section 15—"Certain Conditions of the Offer") and the other Offer Conditions conditions that are described in Section 13—“Conditions 15—"Certain Conditions of the Offer,” " promptly after expiration of the Merger Agreement provides that Offer, Purchaser shall, will accept for payment and Parent shall cause Purchaser to, immediately after the pay for (subject to any applicable Expiration Date, as it may be extended withholding taxes pursuant to the terms of the Merger Agreement, irrevocably accept for payment ) all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day promptly after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend expiration of the Offer pursuant (as it may be extended and re-extended as described below and in compliance with applicable laws) and in any event in compliance with Rule 14e-1(c) under the Exchange Act. Pursuant to the terms of the Merger Agreement. , Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in the terms and conditions of the Offer that are not inconsistent with Conditions or modify the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminatedOffer, except that Xxxx’x Fusion-io's prior written approval is required for Parent or Purchaser to: • reduce the number of Shares subject to the Offer; • reduce decrease the Offer Price (except as provided in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement)Price; • change the form of consideration payable to be paid in the Offer; • reduce the number of Shares sought to be purchased in the Offer; • amend or Table of Contents modify the Minimum Condition; • otherwise amendamend or modify any Offer Condition (other than the Minimum Condition) in a manner that broadens such Offer Condition, modify adversely impacts Fusion-io's stockholders or supplement provides for a "subsequent offering period" (or any extension thereof) in accordance with Rule 14d-11 promulgated under the Exchange Act; • impose conditions to the Offer that are in addition to the Offer Conditions set forth in Section 15—"Certain Conditions of the Offer"; or • extend the Offer other terms than in a manner pursuant to, and in accordance with, Section 15—"Certain Conditions of the Offer." The Offer in any manner adverse is initially scheduled to Xxxx or expire at 12:00 midnight, New York City time, at the holders end of Shares. In additionthe day on July 22, Purchaser 2014 (the "Initial Expiration Date"), but may be extended and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxxre-extended as described below. The Merger Agreement contains provisions provides that if (i) required by any law or order, or any rule, regulation or other requirement of the SEC or the NYSE which is applicable to govern the circumstances under which Offer, Purchaser is required to, and Parent is required to cause Purchaser to, shall extend the Offer. SpecificallyOffer for any such required period, (ii) at the Merger Agreement provides that: • if, as of the then initial Expiration Date or any later then-scheduled Expiration Date, any of the Offer Conditions (other than the Minimum Condition) have not been satisfied or waived, Purchaser shall extend the Offer for successive extension periods of up to ten business days each until such conditions has been satisfied or waived, (iii) at the initial Expiration Date or any later then-scheduled Expiration Date, the Minimum Condition is the only Offer Condition that has not been satisfied or waived, Purchaser shall extend the Offer for two successive extension periods of ten business days each in order to further seek to satisfy the extent waivableMinimum Condition, (iv) the Regulatory Condition is satisfied or waived within five business days of the initial Expiration Date or any later then-scheduled Expiration Date and any other Offer Condition is not satisfied or waived at such Expiration Date, Purchaser has agreed shall extend the Offer for one extension period of five business days, and (v) any Offer Condition is not satisfied or waived as of the initial Expiration Date or any later then-scheduled Expiration Date, Purchaser may, in its sole discretion, elect to (and Parent has agreed to cause Purchaser but shall not be required to) extend the Offer offer for additional one or more further successive extension periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offereach. However, in no event is Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Termination Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.
Appears in 1 contract
Samples: Offer to Purchase (Sandisk Corp)
Merger Agreement. The following is a summary of certain provisions of the Merger Agreement Agreement. The summary does not purport to be complete and all other provisions of the Merger Agreement discussed herein are is qualified in its entirety by reference to the Merger Agreement itself, itself which is incorporated herein by reference. We have has been filed a copy of the Merger Agreement as Exhibit (d)(1) to the Schedule TOTO and is incorporated herein by reference. The Copies of the Merger Agreement may be examined and copies the Schedule TO, and any other filings that Lilly or Purchaser makes with the SEC with respect to the Offer, may be obtained at the places and in the manner set forth in Section 9—“Certain 8 — “Certain Information Concerning Purchaser Lilly and ParentPurchaser.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein in this Section 11 and not otherwise defined in this Offer to Purchase have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the MergerMerger Agreement. It is not intended to provide modify or supplement any other factual information disclosures about ParentXxxxx, Purchaser or XxxxDICE. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement Lilly, Purchaser and DICE and may be subject to qualifications and limitations agreed upon by such partiesXxxxx, Purchaser and DICE. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the partiesbetween Lilly, Purchaser and DICE, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were cases, are qualified by disclosures set forth in a the confidential disclosure letter that was provided delivered by Xxxx DICE to Parent and Xxxxx xnd Purchaser but concurrently with the execution of the Merger Agreement (the “Disclosure Letter”). Neither the Table of Contents inclusion of the Merger Agreement nor the summary of the Merger Agreement is not intended to modify or supplement any factual disclosures about DICE, Xxxxx xr Purchaser in DICE’s public reports filed with the SEC as part of the Merger AgreementSEC. Investors and stockholders are not third-party beneficiaries under the Merger AgreementAgreement (except that, except with respect after the Effective Time, any one or more of the holders of Shares, Cash-Out Stock Options and Exercisable Pre-Close Stock Options may enforce the provisions in the Merger Agreement relating to their right to receive the Offer Price following the Offer Acceptance Time or to receive consideration in the Merger Consideration applicable to such holder(s), and certain provisions pertaining to limitations of liability if the Termination Fee (as defined below) is paid to Lilly are intended to benefit and shall be enforceable by the stockholders of DICE). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger AgreementJune 18, 2023, which subsequent information may or may not be fully reflected in the parties’ Lilly, Purchaser and DICE’s public disclosures. The Offer. The Provided that the Merger Agreement provides that has not been terminated, Purchaser will commence the Offer as promptly as practicable, and in no event later than September 13July 3, 20172023. Purchaser’s obligation to, and Xxxxx’x obligation to cause Purchaser to, irrevocably accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer.” herein. Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” herein, the Merger Agreement provides that Purchaser shallwill, and Parent shall Xxxxx xill cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment and pay for all Shares validly tendered and not validly properly withdrawn pursuant to the Offer that Purchaser becomes obligated to purchase pursuant to the Offer promptly after the expiration of the Offer and, as soon as reasonably practicablein any event, and no more than one three business day days after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to the terms expiration of the Merger AgreementOffer. Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) waive, in its sole discretion, in whole or in part, any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in Condition or modify the terms and conditions of the Offer that are in any manner not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminatedAgreement, except that Xxxx’x DICE’s prior written approval is required for Parent or Purchaser to, and for Lilly to permit Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price Price; • waive, amend or modify either of the Minimum Tender Condition or the Termination Condition (as defined below); • add to the Offer Conditions or impose any other conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Shares; • except as otherwise provided in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • terminate, extend or otherwise change amend or modify the expiration date of the Offer (except as provided in the Merger Agreement)Expiration Time; • change the form or terms of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of Shares. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition ; or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, provide for any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement “subsequent offering period” in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination Rule 14d-11 of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The MergerExchange Act. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.:
Appears in 1 contract
Samples: Offer to Purchase (ELI LILLY & Co)
Merger Agreement. The following is a summary of certain provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are Agreement. This summary is qualified in its entirety by reference to the Merger Agreement itselfAgreement, which is incorporated herein by reference. We have filed a copy of the Merger Agreement which is filed as Exhibit (d)(1) to the Schedule TO, and which is incorporated herein by reference. This summary does not purport to be complete and may not contain all of the information about the Merger Agreement that is important to you. We encourage you to carefully read the Merger Agreement in its entirety. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 9—“Certain Information Concerning Purchaser and Parent.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the Merger. It is not intended to provide you with any other factual information about Parent, Purchaser or XxxxSilicon Image. Such information can be found elsewhere in this Offer to Purchase. The Merger Agreement has been included solely to provide you with information regarding its terms. Factual disclosures about Parent, the Purchaser or Silicon Image or any of their respective affiliates contained in this Offer to Purchase, in their respective public reports filed with the SEC and otherwise, as applicable, may supplement, update or modify the factual disclosures about Parent, the Purchaser and Silicon Image or any of their respective affiliates contained in the Merger Agreement. The representations, warranties, covenants and conditions made and agreed to in the Merger Agreement by Parent, the Purchaser and Silicon Image were qualified and subject to important limitations agreed to by Parent, the Purchaser and Silicon Image in connection with negotiating the terms of the Merger Agreement. In particular, the representations, warranties and covenants certain closing conditions, contained in the Merger Agreement were made only as of specified dates for negotiated with the principal purposes of such agreement, were (except as expressly set forth therein) solely for establishing the benefit of circumstances in which a party to the Merger Agreement may have the right not to complete the Offer or consummate the Merger and allocating risk between the parties to such agreement the Merger Agreement. The representations and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants closing conditions contained in the Merger Agreement do not establish matters of fact. The representations and any description thereof contained or incorporated by reference herein, it is important to bear warranties set forth in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the parties, rather than establishing matters as facts. Such representations, warranties and covenants Merger Agreement may also be subject to a contractual standard of materiality different from those that generally applicable to stockholders and reports and documents filed with the SEC, SEC and in some cases were qualified by disclosures set forth that were made by each party to the other, which disclosures were not reflected in a confidential disclosure letter that was provided by Xxxx to Parent and Purchaser but is not filed with the SEC as part of the Merger Agreement. Investors and stockholders are not third-party beneficiaries under the Merger AgreementMoreover, except with respect to their right to receive the Offer Price following the Offer Acceptance Time or to receive the Merger Consideration (as defined below). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information information concerning the Table of Contents subject matter of such representations, warranties the representations and covenantswarranties, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger AgreementAgreement and subsequent developments or new information qualifying a representation or warranty may have been included in this Offer to Purchase. The holders of Shares and other investors are not third-party beneficiaries under the Merger Agreement and should not rely on the representations, which subsequent information may warranties and covenants or may not be fully reflected in any descriptions thereof as characterizations of the parties’ public disclosuresactual state of facts or conditions of Silicon Image, Parent, Purchaser or any of their respective subsidiaries or affiliates. The Offer. The Merger Agreement provides that Purchaser will commence the Offer as promptly as practicable but in no later event more than September 13, 201710 business days following the date of the Merger Agreement. Purchaser’s The obligation of Purchaser to accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions 15—“Certain Conditions of the Offer.” Subject to the satisfaction of the Minimum Tender Condition (as defined in Section 15—“Certain Conditions of the Offer”) and the other Offer Conditions conditions that are described in Section 13—“Conditions 15—“Certain Conditions of the Offer,” promptly after expiration of the Merger Agreement provides that Offer, Purchaser shall, will accept for payment and Parent shall cause Purchaser to, immediately after the pay for (subject to any applicable Expiration Date, as it may be extended tax withholding pursuant to the terms of the Merger Agreement, irrevocably accept for payment ) all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day promptly after the expiration of the Offer (as it may be extended and re-extended as described below and in compliance with applicable laws) and in any event in compliance with Rule 14e-1(c) under the Exchange Act. The time of such acceptance for payment of Shares is referred to herein as the “Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant .” Pursuant to the terms of the Merger Agreement. , Purchaser expressly reserves the right to waive any Offer Conditions or modify the terms of the Offer, except that Silicon Image’s prior written approval is required for Purchaser to: • decrease the Offer Price; • change the form of consideration to be paid in the Offer; • reduce the number of Shares sought to be purchased in the Offer; • amend or modify the Minimum Condition; • amend or modify any Offer Condition (other than the Minimum Condition) in a manner that adversely impacts Silicon Image or Silicon Image’s stockholders; • provides any “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act; or • impose conditions to the Offer that are in addition to the Offer Conditions set forth in Section 15—“Certain Conditions of the Offer”. The Offer is initially scheduled to expire at 12:00 midnight, New York City time, at the end of the day on March 9, 2015 (the “Initial Expiration Date”), but may be extended and re-extended as described below. The Merger Agreement provides that if (i) required by any law or order, or any rule, regulation or other requirement of the Securities and Exchange Commission (the “SEC”) or the NASDAQ which is applicable to the Offer, Purchaser shall extend the Offer for any such required period, (ii) required by any other governmental authority, Purchaser shall extend the Offer for any period so required, (iii) at the Expiration Time, as the same may be extended from time to time, time, any of the Offer Conditions (other than the Minimum Condition and the Certification Condition) have not been satisfied or waived (to the extent permitted under applicable legal requirements) any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in the terms and conditions of the Offer that are not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminated, except that Xxxx’x prior written approval is required for Parent or Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided in the Merger Agreementlaw); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of Shares. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) shall extend the Offer for additional successive extension periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend each until the Offer for the minimum period required by any law, interpretation or position earlier of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms or 5:00 p.m., New York City time, on July 27, 2015, or (iv) at the Expiration Time, as the same may be extended from time to time, the Minimum Condition and Certification Condition are the Outside Date. only Offer Conditions that have not been satisfied or waived, Purchaser has agreed that it will (and Parent will cause Purchaser to) promptlyshall, irrevocably and unconditionally terminate at the request of Silicon Image, extend the Offer upon for not more than two consecutive increments of not more than ten business days each in order to further seek to satisfy the Minimum Condition, Purchaser (a) may at any time extend the Offer for any period agreed by Parent and Silicon Image (subject to applicable Table of Contents law), (b) shall extend the Offer for the first business day after the expiration of a “matching” period as described under “Acquisition Proposal” in Section 11 – “The Merger Agreement; Other Agreements” if such “matching” period would expire after the Expiration Time and (c) shall extend the Offer until the business day immediately following the end of the Marketing Period described in Section 9 – “Source and Amount of Funds” if the Expiration Time falls within such Marketing Period. Other than in connection with the termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. Agreement as described under “Termination” Section 11 – “The Merger Agreement provides thatAgreement; Other Agreements”, following completion of Purchaser shall not terminate or withdraw the Offer and subject to the terms and conditions of the Merger Agreementwithout Silicon Image’s consent. However, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time is Purchaser required to extend the Offer beyond 5:00 p.m., New York City time, on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective TimeJuly 27, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger2015.
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Merger Agreement. The following is a summary of certain provisions of the Merger Agreement Agreement. The summary does not purport to be complete and all other provisions of the Merger Agreement discussed herein are is qualified in its entirety by reference to the Merger Agreement itself, itself which is incorporated herein by reference. We have has been filed a copy of the Merger Agreement as Exhibit (d)(1) to the Schedule TOTO and is incorporated herein by reference. The Copies of the Merger Agreement may be examined and copies the Schedule TO, and any other filings that Lilly or Purchaser makes with the SEC with respect to the Offer, may be obtained at the places and in the manner set forth in Section 9—“Certain 8 — “Certain Information Concerning Purchaser Lilly and ParentPurchaser.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions Table of Contents summarized below. Capitalized terms used herein in this Section 11 and not otherwise defined in this Offer to Purchase have the respective meanings set forth in the Merger Agreement. The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide investors and stockholders with information regarding the terms of the Offer and the MergerMerger Agreement. It is not intended to provide modify or supplement any other factual information disclosures about ParentLilly, Purchaser or XxxxPOINT. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were (except as expressly set forth therein) solely for the benefit of the parties to such agreement Lilly, Purchaser and POINT and may be subject to qualifications and limitations agreed upon by such partiesLilly, Purchaser and POINT. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk among the partiesbetween Lilly, Purchaser and POINT, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were cases, are qualified by disclosures set forth in a the confidential disclosure letter that was provided delivered by Xxxx POINT to Parent Lilly and Purchaser but concurrently with the execution of the Merger Agreement (the “Disclosure Letter”). Neither the inclusion of the Merger Agreement nor the summary of the Merger Agreement is not intended to modify or supplement any factual disclosures about POINT, Lilly or Purchaser in POINT’s public reports filed with the SEC as part of the Merger AgreementSEC. Investors and stockholders are not third-party beneficiaries under the Merger AgreementAgreement (except that, except with respect after the Effective Time, any one or more of the holders of Shares, Cash-Out Stock Options and Exercisable Pre-Close Stock Options may enforce the provisions in the Merger Agreement relating to their right to receive the Offer Price following the Offer Acceptance Time or to receive consideration in the Merger Consideration applicable to such holder(s), and certain provisions pertaining to limitations of liability if the Termination Fee (as defined below) is paid to Xxxxx are intended to benefit and will be enforceable by the stockholders of POINT). Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger AgreementOctober 2, 2023, which subsequent information may or may not be fully reflected in the parties’ Lilly, Purchaser and POINT’s public disclosures. The Offer. The Provided that the Merger Agreement provides that has not been validly terminated, Purchaser will commence the Offer as promptly as practicable, and in no event later than September 13October 17, 20172023. Purchaser’s obligation to, and Xxxxx’x obligation to cause Purchaser to, irrevocably accept for payment and pay for Shares validly tendered and not properly withdrawn in the Offer is subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer.” Subject to the satisfaction of the Minimum Tender Condition and the other Offer Conditions that are described in Section 13—“Conditions of the Offer,” the Merger Agreement provides that Purchaser shall, and Parent shall cause Purchaser to, immediately after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement, irrevocably accept for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer and, as soon as reasonably practicable, and no more than one business day after the Acceptance Time, pay for such Shares. The Offer will expire at 11:59 p.m., Eastern Time, on October 12, 2018, unless we extend the Offer pursuant to the terms of the Merger Agreement. Purchaser expressly reserves the right to waive (to the extent permitted under applicable legal requirements) any Offer Condition, to increase the amount of cash constituting the Offer Price, to make any other changes in the terms and conditions of the Offer that are not inconsistent with the terms of the Merger Agreement and to terminate the Offer if the conditions to the Offer are not satisfied and the Merger Agreement is terminated, except that Xxxx’x prior written approval is required for Parent or Purchaser to: • reduce the number of Shares subject to the Offer; • reduce the Offer Price (except as provided in the Merger Agreement); • change, modify or waive the Minimum Tender Condition; • impose any condition to the Offer in addition to the conditions set forth in Section 13—“Conditions of the Offer;” • extend or otherwise change the expiration date of the Offer (except as provided in the Merger Agreement); • change the form of consideration payable in the Offer; or Table of Contents • otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to Xxxx or the holders of Shares. In addition, Purchaser and Parent may not waive the HSR Condition, the Governmental Impediment Condition or the Termination Condition without the consent of Xxxx. The Merger Agreement contains provisions to govern the circumstances under which Purchaser is required to, and Parent is required to cause Purchaser to, extend the Offer. Specifically, the Merger Agreement provides that: • if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, to the extent waivable, Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for additional periods of up to ten (10) business days per extension (or longer if agreed), to permit such Offer Condition to be satisfied; and • Purchaser has agreed to (and Parent has agreed to cause Purchaser to) extend the Offer for the minimum period required by any law, interpretation or position of the SEC or its staff applicable to the Offer. However, Purchaser is not required to extend the Offer beyond the earlier to occur of the valid termination of the Merger Agreement in accordance with its terms and the Outside Date. Purchaser has agreed that it will (and Parent will cause Purchaser to) promptly, irrevocably and unconditionally terminate the Offer upon any termination of the Merger Agreement, and Purchaser will promptly return, and will cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. The Merger. The Merger Agreement provides that, following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the MGCL, at the Effective Time, Purchaser will be merged with and into Xxxx, the separate existence of Purchaser will cease, and Xxxx will continue as the Surviving Corporation in the Merger. The Merger will be effected under Section 3-106.1 of the MGCL which provides that stockholder approval of a merger is not required if certain requirements are met, including that (i) the acquiring company consummates a tender offer for any and all of the outstanding stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the company to be acquired that, absent Section 3-106.1 of the MGCL, would be required to approve the merger and (iii) notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL has been given to all Xxxx stockholder’s at least 30 days prior to the merger. A Notice of the Merger pursuant to Section 3-106(e)(1) is being mailed on September 13, 2018 to Xxxx stockholders of record as of such date, thereby constituting the notice of merger referred to in this paragraph. Subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Purchaser, Parent and Xxxx are required to effect the Merger pursuant to Section 3-106.1 of the MGCL as promptly as possible (and in no event later than 9:00 a.m. Eastern Time on the first business day following the date on which Shares are first accepted for purchase under the Offer). As of the Effective Time, the articles of incorporation of Xxxx will be amended and restated to conform to the articles of incorporation of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the articles of incorporation of the Surviving Corporation. As of the Effective Time, the bylaws of Xxxx will be amended and restated to conform to the bylaws of Purchaser in effect immediately before the Effective Time (other than the use of the name of Xxxx rather than the name of Purchaser) and, as so amended and restated, will be the bylaws of the Surviving Corporation. Table of Contents The obligations of Xxxx, Parent and Purchaser to complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions: • Purchaser will have previously irrevocably accepted for purchase and payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; • no governmental body of competent jurisdiction will have (i) enacted, issued, promulgated, enforced or entered any law, common law, statute, ordinance, code, regulation, rule or other requirement or (ii) issued any order, decision, judgment, writ, injunction, decree, award or other determination, in each case, that is in effect and enjoins or otherwise prohibits the consummation of the Merger; and • notice that satisfies requirements of Section 3-106.1(e)(1) of the MGCL will have been given to all Xxxx stockholder’s at least 30 days prior to the Merger.other
Appears in 1 contract
Samples: Offer to Purchase (ELI LILLY & Co)
