Offer Conditions. Notwithstanding any other provision of the Offer, Merger Sub shall not be required to accept for payment, or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, to pay for, and may delay the acceptance for payment of, any Shares tendered pursuant to the Offer, if (i) the Minimum Condition shall not have been satisfied or (ii) any of the following conditions exists: (a) the Special Committee or the Company Board (acting based on the recommendation of the Special Committee) has made a Change in Recommendation such that the Special Committee Recommendation or the Company Board Recommendation is not in effect as of the Expiration Date; (b) there shall be in effect any Order or Law issued, enacted or promulgated by any court of competent jurisdiction or other Governmental Entity that restrains, enjoins or otherwise prohibits the consummation of the Offer or the Merger; (c) (i) any of the representations and warranties of the Company set forth in Section 4.07(b) (Absence of Certain Changes) shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date, (ii) any of the representations and warranties set forth in parts (a) and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative to this Agreement) shall not be true and correct in all material respects as of the date of this Agreement and as of the Expiration Date as though made on or as of such date or (iii) any of the other representations and warranties of the Company set forth in Article IV hereof (other than the Sections of Article IV referred to in clause (i) or (ii) above), disregarding any exceptions therein relating to materiality or Material Adverse Effect, shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date except in the case of clause (iii) for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have, a Material Adverse Effect; (d) the Company shall not have performed or complied with in all material respects, any of its covenants or agreements contained in the Agreement at or prior to the Expiration Date to the extent required to be performed at or prior to the Expiration Date, which failure to perform or comply shall not have been cured at or prior to the Expiration Date; (e) Form D approval from the insurance regulatory authority in Illinois with respect to the Transactions shall not have been received; or (f) the Agreement shall have been terminated in accordance with its terms. The foregoing conditions shall be in addition to, and not a limitation of, the rights of Parent and Merger Sub to extend, terminate or modify the Offer pursuant to the terms and conditions of this Agreement. The foregoing conditions are for the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporation.
Appears in 1 contract
Samples: Merger Agreement (Cna Surety Corp)
Offer Conditions. Notwithstanding any other provision term of the OfferOffer or the Agreement, Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, accept for payment, payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange ActAct (relating to Merger Sub’s obligation to pay for or return tendered shares of Company Common Stock promptly after the termination or withdrawal of the Offer), pay for any shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer (and not theretofore accepted for payment or paid for) unless (a) there shall have been validly tendered in the Offer (and not properly withdrawn) prior to the expiration of the Offer that number of shares of Company Common Stock (excluding shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by the “depository,” as such terms are defined by Section 251(h) of the DGCL) that, when added to the shares of Company Common Stock then owned by Parent, Merger Sub or any subsidiary of Parent, would represent at least a majority of the Company Common Stock outstanding as of immediately following the consummation of the Offer (such condition in this clause (a), the “Minimum Tender Condition”) and (b) the waiting period under the HSR Act applicable to the purchase of shares of Company Common Stock pursuant to the Offer and the consummation of the Merger shall have either expired or been terminated (the “Antitrust Condition”). Furthermore, notwithstanding any other term of the Offer or this Agreement, Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, accept for payment or, subject as aforesaid, to pay for, and may delay the acceptance for any shares of Company Common Stock not theretofore accepted for payment ofor paid for if, any Shares tendered pursuant to at the then-scheduled expiration of the Offer, if (i) the Minimum Condition shall not have been satisfied or (ii) any of the following conditions exists:
(a) the Special Committee or the Company Board (acting based on the recommendation of the Special Committee) has made a Change in Recommendation such that the Special Committee Recommendation or the Company Board Recommendation is not in effect as of the Expiration Date;
(b) there shall be in effect any Order or Law issued, enacted or promulgated by any court of competent jurisdiction or other Governmental Entity that restrains, enjoins or otherwise prohibits the consummation of the Offer or the Merger;
(c) (i) any of the representations and warranties of the Company set forth in Section 4.07(b) (Absence of Certain Changes) shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date, (ii) any of the representations and warranties set forth in parts (a) and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative to this Agreement) shall not be true and correct in all material respects as of the date of this Agreement and as of the Expiration Date as though made on or as of such date or (iii) any of the other representations and warranties of the Company set forth in Article IV hereof (other than the Sections of Article IV referred to in clause (i) or (ii) above), disregarding any exceptions therein relating to materiality or Material Adverse Effect, shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date except in the case of clause (iii) for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have, a Material Adverse Effect;
(d) the Company shall not have performed or complied with in all material respects, any of its covenants or agreements contained in the Agreement at or prior to the Expiration Date to the extent required to be performed at or prior to the Expiration Date, which failure to perform or comply shall not have been cured at or prior to the Expiration Date;
(e) Form D approval from the insurance regulatory authority in Illinois with respect to the Transactions shall not have been received; or
(f) the Agreement shall have been terminated in accordance with its terms. The foregoing conditions shall be in addition to, and not a limitation of, the rights of Parent and Merger Sub to extend, terminate or modify the Offer pursuant to the terms and conditions of this Agreement. The foregoing conditions are for the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporation.
Appears in 1 contract
Offer Conditions. Notwithstanding any other provision provisions of the Offer, Merger but subject to compliance with the terms and conditions of this Agreement, in addition to (and not in limitation of) the obligations of Acquisition Sub to extend the Offer pursuant to the terms and conditions of this Agreement, Acquisition Sub shall not be required to accept for payment, payment or, subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-1(c) promulgated under the Exchange Act, Act (relating to the obligation of Acquisition Sub to pay forfor or return tendered shares of Company Common Stock promptly after termination or withdrawal of the Offer)), pay for any shares of Company Common Stock that are validly tendered in the Offer and may delay the acceptance for payment of, any Shares tendered pursuant not withdrawn prior to the Offerscheduled expiration of the Offer in the event that, if at or prior to the scheduled expiration of the Offer (collectively, the “Tender Offer Conditions”):
(i) the Minimum Condition there shall not have been satisfied validly tendered and not withdrawn in accordance with the terms of the Offer a number of shares of Company Common Stock that, and the shares of Company Common Stock that the Company would be required to issue upon conversion, settlement or exercise of all then outstanding options, benefit plans, obligations or securities convertible or exchangeable into such shares, or other rights to acquire or be issued such shares (including all then outstanding Company Options and Company RSUs), for which the Company has received notices of exercise or conversion prior to the scheduled expiration of the Offer, together with the shares of Company Common Stock then owned by Parent and Acquisition Sub (if any), represents a majority of all then outstanding shares of Company Common Stock (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures) (the “Minimum Condition”);
(ii) any waiting period (and extensions thereof) applicable to the transactions contemplated by this Agreement under the HSR Act shall not have expired or been terminated; or
(iii) any of the following conditions existsshall have occurred and continue to exist as of immediately prior to the scheduled expiration of the Offer:
(aA) the Special Committee any Governmental Authority of competent jurisdiction shall have (1) enacted, issued or the Company Board (acting based on the recommendation of the Special Committee) has made a Change in Recommendation such promulgated any Law that the Special Committee Recommendation or the Company Board Recommendation is not in effect as of immediately prior to the Expiration Date;
(b) there shall be in scheduled expiration of the Offer and has the effect any Order of making the Offer or Law issued, enacted the Merger illegal or promulgated by any court which has the effect of competent jurisdiction or other Governmental Entity that restrains, enjoins prohibiting or otherwise prohibits preventing the consummation of the Offer or the Merger, or (2) issued or granted any Order that is in effect as of immediately prior to the scheduled expiration of the Offer and has the effect of making the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Merger;
(cB) (i) any of the representations and warranties of the Company set forth in Section 4.07(b) (Absence of Certain Changes) shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date, (ii1) any of the representations and warranties set forth in parts Sections 3.1 (aOrganization; Good Standing), 3.2 (Corporate Power; Enforceability), 3.3 (Requisite Stockholder Approval), and 3.25 (Brokers) and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative to this Agreementcollectively, the “Fundamental Representations”) shall not be have been true and correct in all material respects as of the date of this Agreement or shall not be true and correct in all material respects as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of the Expiration Date such time (other than any such representation or warranty that is made only as though made on or of a specified date, which need only to be true and correct in all material respects as of such date or specified date); (iii2) any of the other representations and warranties of the Company set forth in Article IV hereof Section 3.6 (other than Company Capitalization) (the Sections of Article IV referred to in clause (i“Capitalization Representation”) or (ii) above), disregarding any exceptions therein relating to materiality or Material Adverse Effect, shall not be have been true and correct as of the date of this Agreement or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of the Expiration Date such time (other than any such representation or warranty that is made only as though made on or of a specified date, which need only to be true and correct as of such date specified date), except in where the case of clause (iii) for such failures failure to be so true and correct thatwould not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate, of more than one million five hundred thousand dollars ($1,500,000); or (3) any of the representations and warranties of the Company set forth in this Agreement (other than the Fundamental Representations or the Capitalization Representation), disregarding any “materiality,” “Company Material Adverse Effect” or other similar qualifications set forth in all such representations or warranties, shall not have been true and correct as of the date of this Agreement or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of such time (other than any such representation or warranty that is made only as of a specified date, which need only to be true and correct as of such specified date), except in the case of this clause (3), to the extent that the facts and circumstances causing or resulting in any such representations and warranties not to be true and correct as of the date hereof, as of immediately prior to the scheduled expiration of the Offer or as of the specified date in the representation or warranty have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(dC) the Company shall have failed to perform in all material respects the obligations that are to be performed by it under this Agreement at or prior to the scheduled expiration of the Offer;
(D) a Company Material Adverse Effect shall have arisen or occurred following the execution and delivery of this Agreement that is continuing as of immediately prior to the scheduled expiration of the Offer;
(E) this Agreement shall have been properly and validly terminated in accordance with its terms;
(F) the Company shall not have performed or complied furnished Parent with in all material respects, a certificate dated as of the date of determination signed on its behalf by any of its covenants the Company’s chief executive officer, chief financial officer or agreements contained such other officer serving in the Agreement at or prior such capacity to the Expiration Date to effect that the extent required to be performed at or prior to the Expiration Date, which failure to perform or comply conditions set forth in clauses (B) and (C) of this Section 1.1(b)(iii) shall not have been cured at or prior to the Expiration Date;
(e) Form D approval from the insurance regulatory authority in Illinois with respect to the Transactions shall not have been receivedoccurred; or
(fG) the Agreement there shall have been terminated in accordance with its terms. The foregoing conditions shall be in addition toinstituted by any Governmental Authority of competent jurisdiction any Legal Proceeding which is pending:
(1) challenging or seeking to make illegal or otherwise, and not a limitation ofdirectly or indirectly, restrain or prohibit, the acceptable for payment, payment for or purchase of any or all of the shares of Company Common Stock by Parent or Acquisition Sub, or the consummation of the Offer or the Merger;
(2) seeking, in connection with the transactions contemplated by this Agreement, to require the Company, Parent or Acquisition Sub to take a Burdensome Action;
(3) seeking to impose or confirm any material limitation on the ability of Parent or Acquisition Sub to acquire, hold or exercise effectively full rights of Parent and Merger ownership of Company Common Stock, including the right to vote any Company Common Stock acquired by Acquisition Sub to extend, terminate or modify the Offer pursuant to the terms and conditions of this Agreement. The foregoing conditions are for Offer or otherwise on all matters properly presented to the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived Company Stockholders; or
(4) seeking to require divestiture by Parent and Merger or Acquisition Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations shares of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety CorporationCompany Common Stock.
Appears in 1 contract
Offer Conditions. Notwithstanding any other provision of the Offer, Merger Sub Buyer shall not be required to, and Parent shall not be required to cause Buyer to, accept for paymentpayment or pay for any Shares unless, or, subject as of immediately prior to any the applicable rules and regulations Expiration Time:
A. there shall have been validly tendered in accordance with the terms of the SEC, including Rule 14e-1(c) under the Exchange Act, to pay forOffer, and may delay the acceptance for payment ofnot withdrawn, any a number of Shares (excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee prior to the expiration of the Offer) that, if (i) together with the Minimum Condition shall not have been satisfied or (ii) any Shares then owned by Parent and/or Buyer, represents at least 80% of the following conditions exists:
(a) the Special Committee or the Company Board (acting based on the recommendation of the Special Committee) has made a Change in Recommendation such that the Special Committee Recommendation or the Company Board Recommendation is not in effect as of Shares outstanding immediately prior to the Expiration DateTime (the “Minimum Condition”);
(b) there B. the applicable waiting period under the HSR Act shall be in effect any Order have expired or been terminated;
C. no Applicable Law issued, enacted or promulgated preliminary or permanent injunction or other order issued by any a court of competent jurisdiction or other Governmental Entity that restrainsrestraining, enjoins making illegal or otherwise prohibits the prohibiting consummation of the Offer or the MergerAsset Sale shall have taken effect and shall still be in effect;
(c) (i) any of the representations and warranties of the Company set forth contained in Section 4.07(b) (Absence of Certain Changes) shall not be true Sections 3.01(a), 3.02 and correct as of the date 3.22 of this Agreement and as of the Expiration Date as though made on or as of such date, (ii) any of the representations and warranties set forth in parts (a) and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative to this Agreement) shall not be true and correct in all material respects as of the date of this Agreement and as of the Expiration Date Time as though if made on or at such time (other than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true only as of such date or other specified time), (iiiii) any of the other representations and warranties of the Company set forth contained in Article IV hereof (other than Section 3.05(a) and the Sections first sentence of Article IV referred to in clause (iSection 3.05(b) or (ii) above), disregarding any exceptions therein relating to materiality or Material Adverse Effect, of this Agreement shall not be true and correct in all but de minimis respects (relative to the magnitude of the aggregate consideration payable by Parent or Buyer pursuant to Article 2) as of the date of this Agreement and as of the Expiration Date Time as though if made on or at such time (other than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true only as of such time), (iii) the representations and warranties of the Company contained in this Agreement that are qualified by “Company Material Adverse Effect” shall be true in all respects as of the date except of this Agreement and as of the Expiration Time as if made at such time (other than any such representation and warranty that by its terms addresses matters only as of another specified time, which shall be true only as of such time), and (iv) all other representations and warranties (disregarding for this clause (iv) any materiality or Company Material Adverse Effect qualifications contained in such representations and warranties) of the Company contained in this Agreement shall be true at and as of the date of this Agreement and as of the Expiration Time as if made at such time (other than any such representations and warranty that by its terms addresses matters only as another specified time, which shall be true only as of such time), with only such exceptions in the case of clause (iiiiv) for such failures to be so true and correct that, individually or in the aggregate, as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(d) E. the Company shall not have performed or complied with in all material respectsrespects its obligations, any of its agreements and covenants or agreements contained in the under this Agreement at or prior to the Expiration Date Time;
F. the Company shall have obtained the Approval of the Boards and the Shareholder Approvals;
G. since the date of this Agreement, a Company Material Adverse Effect has not occurred;
H. the resignations of the existing members of the Boards as contemplated by Section 2.04(a)(ii) shall have been obtained;
I. the Company shall have delivered to Parent a certificate signed by a managing director of the Company dated as of the date on which the Offer expires certifying that the Offer Conditions specified in paragraphs (D), (E) and (F) have been satisfied;
J. No Anti-Takeover Measure has been implemented by the Company in relation to the extent required to be performed at Offer or prior to the Expiration Date, which failure to perform or comply Tender Agreements; and
K. this Agreement shall not have been cured at or prior to the Expiration Date;
(e) Form D approval from the insurance regulatory authority in Illinois with respect to the Transactions shall not have been received; or
(f) the Agreement shall have been terminated in accordance with its terms. The foregoing conditions shall be in addition to, and not a limitation of, the rights of Parent and Merger Sub to extend, terminate or modify the Offer pursuant to the terms and conditions of this Agreement. The foregoing conditions are for the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporation.
Appears in 1 contract
Offer Conditions. Notwithstanding any other provision The obligation of KEMET to accept the tendered Shares and Loan Notes and to complete the Tender Offer, Merger Sub shall not be required subject to accept for payment, the satisfaction or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, to pay for, and may delay the acceptance for payment of, any Shares tendered pursuant to the Offerextent permitted by applicable law, if (i) the Minimum Condition shall not have been satisfied or (ii) any waiver by KEMET of the following conditions existsonly:
(a) the Special Committee or the Company Board (acting based on the recommendation valid tender of Shares and Loan Notes representing more than 2/3 of the Special Committee) has made issued and outstanding shares and votes of Evox on a Change in Recommendation such that fully diluted basis (i.e. taking into consideration the Special Committee Recommendation or the Company Board Recommendation is not in effect as of the Expiration Dateconversion of all the Loan Notes, including without limitation those validly tendered, as if they all were converted into Evox shares, whether or not they actually are);
(b) there shall be the receipt of all necessary regulatory and other permits and approvals, including clearances from the competition authorities in effect any Order or Law issuedGermany, enacted or promulgated by any court of competent jurisdiction or other Governmental Entity that restrains, enjoins or otherwise prohibits the consummation of the Offer or the Mergeron terms reasonably acceptable to KEMET;
(c) (i) any of no event, circumstance or change having occurred after the representations and warranties of the Company set forth Signing Date that results in Section 4.07(b) (Absence of Certain Changes) shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such dateconstitutes, (ii) any of the representations and warranties set forth in parts (a) and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative to this Agreement) shall not be true and correct in all material respects as of the date of this Agreement and as of the Expiration Date as though made on or as of such date or (iii) any of the other representations and warranties of the Company set forth in Article IV hereof (other than the Sections of Article IV referred to in clause (i) or (ii) above), disregarding any exceptions therein relating to materiality or Material Adverse Effect, shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date except in the case of clause (iii) for such failures to be so true and correct that, individually or in the aggregate, have not had and would not that can reasonably be expected to haveresult in or constitute, a Material Adverse EffectChange (as defined below);
(d) KEMET not, after the Company shall not have performed or complied with in all material respects, any of its covenants or agreements contained in the Agreement at or prior to the Expiration Date to the extent required to be performed at or prior to the Expiration Signing Date, which failure having received information previously undisclosed to perform it that has resulted in or comply shall not have been cured at constituted, or prior that can reasonably be expected to the Expiration Dateresult in or constitute, a Material Adverse Change (as defined below);
(e) Form D approval from the insurance no court or regulatory authority in Illinois with respect to of competent jurisdiction having given an order or issued any regulatory action preventing, postponing or materially challenging the Transactions shall not have been received; orconsummation of the Tender Offer;
(f) the Board of Directors of Evox having issued its statement regarding the Tender Offer (as required by the Finnish Securities Markets Act) within two (2) banking days from the Launch Date recommending the shareholders and holders of Loan Notes to accept the Tender Offer (“Recommendation”) and the Recommendation remaining in force and not being changed;
(g) the Combination Agreement shall have not having been terminated and remaining in force; and
(h) the undertaking by Fennogens Investment S.A., Xxxxxx Xxxxx Oy, Mr Wee Cheng Hoon, Xx Xxxxxx Xxxxxxxxx and Xx Xxxxxx Xxxxx, respectively, to accept the Tender Offer remaining in force in accordance with its present terms. The foregoing conditions shall be in addition to, and not a limitation of, the rights of Parent and Merger Sub to extend, terminate or modify the Offer pursuant to the terms and conditions of this Agreement. The foregoing conditions are for the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporation.
Appears in 1 contract
Samples: Combination Agreement (Kemet Corp)
Offer Conditions. Notwithstanding any other provision Provided that this Agreement shall not have been terminated pursuant to Section 7.1 and subject to the rights and obligations of Merger Sub to extend, terminate or amend the OfferOffer in accordance with the terms and conditions of this Agreement, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment, payment or, subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-1(c) under the Exchange Act, to ) pay forfor any validly tendered and not validly withdrawn Company Common Shares, and Merger Sub may (and Parent may cause Merger Sub to) delay the acceptance for payment ofof or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) under the Exchange Act) the payment for, any Company Common Shares that are validly tendered pursuant to and not validly withdrawn in the Offer in the event that:
(i) at the scheduled expiration of the Offer, if (i) the Minimum Condition there shall not have been satisfied validly tendered in accordance with the terms of the Offer (after giving effect to any valid withdrawals of previously tendered Company Common Shares) a number of Company Common Shares that, taken together with any Company Common Shares then owned, directly or indirectly, by Parent or Merger Sub, represent at least a majority of all then outstanding Company Common Shares (determined on a fully diluted basis) and at least a majority of the voting power of the shares of the capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote upon the approval and adoption of this Agreement on the date the Company Common Shares are accepted for payment (collectively, the “Minimum Condition”); or
(ii) any at the scheduled expiration of the following conditions exists:
(a) the Special Committee Offer, any applicable filings or the Company Board (acting based on the recommendation of the Special Committee) has made a Change in Recommendation such approvals or any mandatory waiting periods under Antitrust Laws that the Special Committee Recommendation or the Company Board Recommendation is not in effect as of the Expiration Date;
(b) there shall be in effect any Order or Law issued, enacted or promulgated by any court of competent jurisdiction or other Governmental Entity that restrains, enjoins or otherwise prohibits are required for the consummation of the Offer and the Merger shall not have been made, obtained or expired, as the Merger;case may be (the “Regulatory Condition”); or
(ciii) the Company shall have breached or failed to perform in any material respect any of its covenants under this Agreement to be performed prior to the scheduled expiration of the Offer and such breach or failure shall not have been waived by Parent and Merger Sub or cured by the Company; or
(iv) (iA) any of the representations and warranties set forth in Section 3.2 or Section 3.11(a) (collectively, the “Fundamental Representations”) shall not have been true and correct as of the date of this Agreement or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of such time (other than any such representation or warranty that is made only as of a specified date, which need only to be true and correct as of such specified date); (B) the representations and warranties set forth in Section 3.5 (the “Capitalization Representation”) shall not have been true and correct as of the date of this Agreement or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of such time (other than any such representation or warranty that is made only as of a specified date, which need only to be true and correct as of such specified date), except for any such failures to be true and correct that, individually and in the aggregate, would cause the aggregate amount required to be paid by Parent and/or Merger Sub to purchase Company Common Shares pursuant to the Offer to increase by less than $100,000; and (C) any of the representations and warranties of the Company set forth in Section 4.07(b) Article III (Absence of Certain Changes) other than the Fundamental Representations and the Capitalization Representation), disregarding any “materiality,” “Company Material Adverse Effect” or other similar qualifications, shall not be have been true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date, (ii) any of the representations and warranties set forth in parts (a) and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative to this Agreement) shall not be true and correct in all material respects as of the date of this Agreement and as of the Expiration Date as though made on or as of such date or (iii) any of the other representations and warranties of the Company set forth in Article IV hereof (other than the Sections of Article IV referred to in clause (i) or (ii) above), disregarding any exceptions therein relating to materiality or Material Adverse Effect, shall not be true and correct as of immediately prior to the date scheduled expiration of this Agreement the Offer with the same force and effect as if made on and as of the Expiration Date such time (other than any such representation or warranty that is made only as though made on or of a specified date, which need only to be true and correct as of such date except specified date), except, in the case of this clause (iii) for C), to the extent that the failure of such failures representations and warranties not to be so true and correct that, individually or in the aggregate, have has not had and would not reasonably be expected to have, individually or in the aggregate with all other failures to be true or correct, a Company Material Adverse Effect;; or
(dv) the Company shall not have performed delivered to Parent and Merger Sub a certificate dated as of the date of the scheduled expiration of the Offer signed on its behalf by the Chief Executive Officer or complied with in all material respects, any Chief Financial Officer of its covenants or agreements contained in the Agreement at or prior Company to the Expiration Date to effect that the extent required to be performed at or prior to the Expiration Date, which failure to perform or comply shall not conditions set forth in clauses (iii) and (iv) of this Section 1.1(b) have been cured at or prior to the Expiration Date;
(e) Form D approval from the insurance regulatory authority in Illinois with respect to the Transactions shall not have been receivedsatisfied; or
(fvi) any Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, entered or enforced any Law or Order that is then in effect or which is deemed to be applicable to the Offer or the Merger pursuant to an authoritative interpretation by or on behalf of a Governmental Authority and has the effect of making the Offer or the Merger illegal or prohibiting or otherwise preventing the consummation of the Offer or the Merger (the “Illegality Condition”); or
(vii) this Agreement shall have been terminated in accordance with its terms. The foregoing conditions Article VII (the “Termination Condition”); or
(viii) there shall be pending any suit, action or proceeding (other than any such action or proceeding described in addition toSection 1.1(b)(viii) of the Company Disclosure Letter) by any Governmental Authority of competent jurisdiction against the Company, and not a limitation of, the rights of Parent and or Merger Sub to extend, terminate or modify in connection with the Offer or the Merger, (A) challenging the acquisition by Parent or Merger Sub of any Company Common Shares pursuant to the terms and Offer or seeking to make illegal, restrain or prohibit the making or consummation of the Offer or the Merger, (B) seeking to prohibit or impose limitations on the ability of Parent or Merger Sub, or otherwise to render Parent or Merger Sub unable, to accept for payment, pay for or purchase any or all of the Company Common Shares pursuant to the Offer or the Merger or seeking to require divestiture of any or all of the Company Common Shares to be purchased pursuant to the Offer, the Top-Up Option or in the Merger, (C) seeking to prohibit or impose any significant limitations on the ownership or operation by Parent, the Company or any of their respective Subsidiaries, of all or any portion of the businesses or assets of Parent, the Company or any of their respective Subsidiaries as a result of or in connection with the Offer, the Merger or any other transactions contemplated by this Agreement, or otherwise seeking to compel Parent, the Company or any of their respective Subsidiaries to divest, dispose of, license or hold separate any portion of the businesses or assets of Parent, the Company or any of their respective Subsidiaries as a result of or in connection with the Offer or the Merger, or (D) seeking to prohibit or impose limitations on the ability of Parent or Merger Sub effectively to acquire, hold or exercise full rights of ownership of the Company Common Shares to be purchased pursuant to the Offer, upon exercise of the Top-Up Option or otherwise in the Merger, including the right to vote the Company Common Shares purchased by it on all matters properly presented to the Company Common Stockholders (the “Governmental Proceeding Condition”); (the conditions set forth in the preceding clauses (i)-(viii), inclusive, of this Agreement. The foregoing conditions are for Section 1.1(b) being referred to herein, collectively, as the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporation“Offer Conditions”).
Appears in 1 contract
Samples: Merger Agreement (Fx Energy Inc)
Offer Conditions. Notwithstanding any other provision of the Offer, Merger Sub shall not be required to accept for payment, or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, to payment or pay for, and may delay the acceptance for payment of, any Shares tendered pursuant to the Offer, if Offer unless (i) the Minimum Condition shall not have been satisfied or and (ii) any applicable waiting period under the HSR Act shall have expired or been terminated. Furthermore, Sub may terminate or amend the Offer and may postpone the acceptance for payment of and payment for Shares tendered, if at any time on or after the date of this Agreement, and prior to the acceptance for payment of Shares, any of the following conditions existsshall exist:
(a) there shall have been issued and shall remain in effect any injunction, order or decree by any court or governmental, administrative or regulatory authority or agency, domestic or foreign, which (i) restrains or prohibits the Special Committee making of the Offer or the Company Board consummation of the Merger, (acting based ii) prohibits or limits ownership or operation by E/One, PCC or Sub of all or any material portion of the business or assets of E/One, or PCC and its subsidiaries, taken as a whole, or compels E/One, PCC or any of its subsidiaries to dispose of or hold separate all or any material portion of the business or assets of E/One or PCC and its subsidiaries, taken as a whole, in each case as a result of the Offer or the Merger; (iii) imposes material limitations on the recommendation ability of PCC or Sub to exercise effectively full rights of ownership of any Shares, including, without limitation, the right to vote any Shares acquired by Sub pursuant to the Offer, or otherwise on all matters properly presented to E/One's stockholders, including, without limitation, the approval and adoption of this Agreement and the Offer and the Merger; or (iv) requires divestiture by PCC or Sub of any material portion of the Special Committee) has made a Change in Recommendation such that the Special Committee Recommendation or the Company Board Recommendation is not in effect as of the Expiration DateShares;
(b) there shall be in effect have been any Order action taken, or Law issuedany statute, enacted rule, regulation order or promulgated injunction enacted, entered, enforced, promulgated, amended, issued or deemed applicable to (i) PCC, E/One or any subsidiary or affiliate of PCC or (ii) any action, by any court legislative body, court, government or governmental, administrative or regulatory authority or agency, domestic or foreign (other than, in the case of competent jurisdiction or other Governmental Entity that restrainsboth (i) and (ii), enjoins or otherwise prohibits the consummation application of the waiting period provisions of the HSR Act to the Offer or the Merger), which results in any of the consequences referred to in clauses (i) through (iv) of paragraph (a) above;
(c) there shall have occurred and be continuing (i) a 25 percent or greater decline in the Dow Xxxxx Average of Industrial Stocks and the Standard and Poor's 500 Index, measured from the date of the Agreement, (ii) any general suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange or in the over-the-counter market, (iii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (iv) any limitation (whether or not mandatory) by any governmental authority on the general extension of credit by banks or other financial institutions, or (v) in the case of any of the foregoing existing at the time of the commencement of the Offer, in the reasonable judgment of PCC, a material worsening thereof;
(d) the E/One Board of Directors or any committee thereof shall have withdrawn or modified in a manner adverse to PCC or Sub its approval or recommendation of the Offer, the Merger or the Agreement or shall have approved or recommended another merger, consolidation, business combination with, or acquisition of E/One or all or substantially all its assets or another tender offer or exchange offer for Shares, or shall have resolved to do any of the foregoing;
(e) E/One shall have failed to perform any of its covenants in this Agreement, which failure either individually or in the aggregate would have a Combined Material Adverse Effect;
(f) the representations and warranties of the Company set forth in Section 4.07(b) (Absence of Certain Changes) E/One shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date, (ii) any of the representations and warranties set forth in parts (a) and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative fail to this Agreement) shall not be true and correct in all material respects on and as of the date of this Agreement made or, except as otherwise expressly contemplated hereby, on and as of the Expiration Date any subsequent date as though if made on or at and as of such date or (iii) any of the other representations and warranties of the Company set forth in Article IV hereof (other than the Sections of Article IV referred to in clause (i) or (ii) above)subsequent date, disregarding any exceptions therein relating to materiality or Material Adverse Effect, shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date except in the case of clause (iii) for such failures to be so true and correct that, which failure either individually or in the aggregate, aggregate would have not had and would not reasonably be expected to have, a Combined Material Adverse Effect;
(dg) the Company shall not have performed or complied with in all material respects, any of its covenants or agreements contained in the Agreement at or prior to the Expiration Date to the extent required to be performed at or prior to the Expiration Date, which failure to perform or comply shall not have been cured at or prior to the Expiration Date;
(e) Form D approval from the insurance regulatory authority in Illinois with respect to the Transactions shall not have been received; or
(f) the this Agreement shall have been terminated in accordance with its terms. The foregoing conditions shall be in addition to, and not a limitation of, the rights of Parent and Merger Sub to extend, terminate or modify the Offer pursuant to the terms and conditions of this Agreement. The foregoing conditions are for the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporation.;
Appears in 1 contract
Offer Conditions. Notwithstanding any other provision Subject to the rights and obligations of Merger Sub to extend and/or amend the Offer in accordance with the terms and conditions of the OfferAgreement, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment, payment or, subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-1(c) under the Exchange Act), to pay forfor any tendered Company Shares, and Merger Sub may (and Parent may cause Merger Sub to) delay the acceptance for payment ofof or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) under the Exchange Act) the payment for, any Company Shares that are validly tendered in the Offer (and not validly withdrawn) prior to the scheduled expiration of the Offer, in the event that:
(i) at the scheduled expiration of the Offer, there shall not have been validly tendered in accordance with the terms of the Offer (after giving effect to any withdrawals of previously tendered Company Shares) a number of Company Shares that, taken together with any Company Shares then owned by Parent and Merger Sub, represent a majority of all then outstanding Company Shares (excluding Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures) (the “Minimum Condition”); or
(ii) at the scheduled expiration of the Offer the waiting period (and any extensions thereof) applicable to the transactions contemplated by the Agreement (including the Offer and the Merger) under the HSR Act shall not have expired or been terminated (the “Regulatory Condition”); or
(iii) the Company shall have breached or failed to perform in any material respect any of its covenants under the Agreement to be performed prior to the scheduled expiration of the Offer; or
(iv) (A) any of the representations and warranties set forth in Section 3.1 (Organization and Good Standing), if Section 3.2 (iAuthorization and Enforceability), Section 3.11(a) (Absence of Certain Changes – Company Material Adverse Effect), and Section 3.29 (Brokers) (collectively, the Minimum Condition “Fundamental Representations”), shall not have been satisfied or (ii) any of the following conditions exists:
(a) the Special Committee or the Company Board (acting based on the recommendation of the Special Committee) has made a Change in Recommendation such that the Special Committee Recommendation or the Company Board Recommendation is not in effect true and correct as of the Expiration Date;
(b) there date of the Agreement or shall not be in effect any Order or Law issued, enacted or promulgated by any court true and correct as of competent jurisdiction or other Governmental Entity that restrains, enjoins or otherwise prohibits immediately prior to the consummation scheduled expiration of the Offer with the same force and effect as if made on and as of such time (other than any such representation or warranty that is made only as of a specified date, which need only to be true and correct as of such specified date); (B) the Merger;
representations and warranties set forth in Section 3.5 (cCapitalization) (ithe “Capitalization Representation”) shall not have been true and correct as of the date of the Agreement or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of such time (other than any such representation or warranty that is made only as of a specified date, which need only to be true and correct as of such specified date), except where the failure to be true and correct would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate, of more than $2.5 million; and (C) any of the representations and warranties of the Company set forth in Section 4.07(b) the Agreement (Absence other than the Fundamental Representations and the Capitalization Representation), disregarding any “materiality,” “Company Material Adverse Effect” or other similar qualifications set forth in all such representations or warranties, shall not have been true and correct as of Certain Changes) the date of the Agreement or shall not be true and correct as of immediately prior to the date scheduled expiration of this Agreement the Offer with the same force and effect as if made on and as of the Expiration Date as though such time (other than any such representation or warranty that is made on or only as of such a specified date, (ii) any of the representations and warranties set forth in parts (a) and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative which need only to this Agreement) shall not be true and correct in all material respects as of the date of this Agreement and as of the Expiration Date as though made on or as of such date specified date), except in the case of this clause (C), to the extent that the facts and circumstances causing or (iii) resulting in any of the other such representations and warranties of the Company set forth in Article IV hereof (other than the Sections of Article IV referred not to in clause (i) or (ii) above), disregarding any exceptions therein relating to materiality or Material Adverse Effect, shall not be true and correct as of the date hereof or as of this Agreement and immediately prior to the scheduled expiration of the Offer (or as of the Expiration Date as though made on or as of such date except specified in the case of clause (iiirepresentation or warranty) for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;; or
(dv) any Company Material Adverse Effect shall have occurred on or prior to, and shall be continuing on the date of, the scheduled expiration of the Offer; or
(vi) the Company shall not have performed delivered to Parent and Merger Sub a certificate dated as of the date of the scheduled expiration of the Offer signed on its behalf by the Chief Executive Officer or complied with in all material respects, any Chief Financial Officer of its covenants or agreements contained in the Agreement at or prior Company to the Expiration Date to effect that the extent required to be performed at or prior to the Expiration Dateconditions set forth in clauses (iii), which failure to perform or comply shall not (iv) and (v) of this Section 1.1(b) have been cured at or prior to the Expiration Date;
(e) Form D approval from the insurance regulatory authority in Illinois with respect to the Transactions shall not have been receivedsatisfied; or
(fvii) any Governmental Authority shall have (A) enacted, issued, promulgated, entered, enforced or deemed applicable to any of the transactions contemplated by the Agreement (including the Offer or the Merger) any applicable Law that has the effect of making the consummation of any of the transactions contemplated by the Agreement (including the Offer and the Merger) illegal or prohibiting or otherwise preventing the consummation of any of the transactions contemplated by the Agreement (including the Offer and the Merger), or (B) issued or granted any Order that remains in effect and has the effect of making any of the transactions contemplated by the Agreement (including the Offer and the Merger) illegal or which has the effect of prohibiting or otherwise preventing the consummation of any of the transactions contemplated by the Agreement (including the Offer and the Merger); or
(viii) there shall be pending any Legal Proceeding brought by any Governmental Authority against Parent, Merger Sub, the Company or any of their respective Affiliates (A) seeking to enjoin the acquisition by Merger Sub (or Parent on Merger Sub’s behalf) of any Company Shares pursuant to the Offer or, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Agreement or the Support Agreements (including the voting provisions thereunder), (B) seeking to impose limitations on the ability of Merger Sub (or Parent on Merger Sub’s behalf), or render Merger Sub (or Parent on Merger Sub’s behalf) unable, to (1) accept for payment, pay for or purchase some or all of the Company Shares pursuant to the Offer and the Merger or (2) exercise full rights of ownership of the Company Shares, including the right to vote the Company Shares purchased by it on all matters properly presented to the Company Stockholders, (C) seeking to (1) compel Parent or any of its Subsidiaries to sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries, (2) compel Parent or any of its Subsidiaries to conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries in any manner, or (3) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries, or (D) which otherwise would be reasonably expected to have a Company Material Adverse Effect; or
(ix) the Agreement shall have been terminated in accordance with its terms. The foregoing terms (the conditions shall be set forth in addition tothe preceding clauses (i) – (ix), and not a limitation ofinclusive, the rights of Parent and Merger Sub to extend, terminate or modify the Offer pursuant to the terms and conditions of this Agreement. The foregoing conditions are for Section 1.1(b) being referred to herein, collectively, as the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporation“Offer Conditions”).
Appears in 1 contract
Samples: Acquisition Agreement (Ca, Inc.)
Offer Conditions. Notwithstanding (a) Each of Newco and the Borrower undertakes that:
(i) without the prior agreement of the Majority Lenders (such agreement being conclusively evidenced by a written notice from the Paying Agent to the Borrower and, in the case of sub-paragraphs (A) and (B), not to be unreasonably withheld or delayed), Newco shall not permit Bidco to and, in respect of sub-paragraph (B) only, Newco shall not, and shall not permit any of its Subsidiaries to:
(A) amend or vary in any material respect any material term or condition of the Offer other provision than by virtue of an extension of the time for acceptance of the Offer;
(B) take or permit to be taken any step as a result of which the offer price stated in the Offer is, or may be required to be, increased beyond the level agreed between Newco and the Lenders from time to time;
(ii) in all material respects relevant in the context of the Offer, Merger Sub shall not be required to accept for payment, or, Newco and its Subsidiaries will comply with The City Code of Takeovers and Mergers (subject to any applicable rules waiver by the Panel), the Financial Services Xxx 0000, the Companies Xxx 0000 and regulations all other applicable statutes, laws and regulations;
(iii) Newco will keep the Paying Agent informed as to the status and progress of the SECOffer and, in particular, will from time to time and promptly on request give to the Paying Agent reasonable details as to the current level of acceptances of the Offer (including Rule 14e-1(c) under a copy of every certificate delivered by the Exchange Act, receiving agent to pay for, and may delay the acceptance for payment of, any Shares tendered Bidco and/or its advisers pursuant to the OfferCode) and such other matters relevant to the Offer as the Paying Agent may reasonably request.
(b) Newco shall cause Bidco not to, without the prior agreement of the Majority Lenders, decide, declare or accept that valid acceptances in respect of less than 90 per cent in nominal value of securities of Target to which the Offer relates shall be required for fulfillment of the condition set out in paragraph (a) of Appendix 1 to the Press Release; provided that the Majority Lenders shall not unreasonably withhold or delay giving their agreement if it is shown to their reasonable satisfaction that Bidco will achieve acceptances sufficient to enable it to give notice under section 429 of the Companies Act of 1985 in relation to the shares to which the Offer relates.
(c) Newco shall cause Bidco to keep the Paying Agent informed and consult with it as to:
(i) the Minimum Condition shall not have been satisfied terms of any undertaking or assurance proposed to be given by it, any of its Affiliates or Target or any of its Subsidiaries to the Director General of Electricity Supply, the Director General of Gas Supply or the Secretary of State for Trade and Industry in connection with the Offer;
(ii) the terms of any modification to any licenses of Target and its Subsidiaries under the following conditions exists:
(a) the Special Committee Gas Act or the Company Board (acting based on Act proposed in connection with the recommendation of the Special Committee) has made a Change in Recommendation such that the Special Committee Recommendation or the Company Board Recommendation is not in effect as of the Expiration DateOffer;
(b) there shall be in effect any Order or Law issued, enacted or promulgated by any court of competent jurisdiction or other Governmental Entity that restrains, enjoins or otherwise prohibits the consummation of the Offer or the Merger;
(c) (i) any of the representations and warranties of the Company set forth in Section 4.07(b) (Absence of Certain Changes) shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date, (ii) any of the representations and warranties set forth in parts (a) and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative to this Agreement) shall not be true and correct in all material respects as of the date of this Agreement and as of the Expiration Date as though made on or as of such date or (iii) any terms proposed in connection with any authorization or determination necessary or appropriate in connection with the Offer, including those from the Secretary of State for Trade and Industry and the Foreign Investment Review Board of Australia. If any of such proposed undertakings, assurances, modifications or terms are, where applicable, of a type materially more onerous than those accepted in connection with the acquisition of other regional electricity companies in the UK and the Majority Lenders, acting reasonably, state that in their opinion such proposed undertaking(s), assurance(s), modification(s) and/or term(s), or compliance therewith, would materially and adversely affect the ability of Newco and its Subsidiaries to comply with their material obligations under the Loan Documents, Newco shall cause Bidco to promptly request the Panel to confirm (and shall use its reasonable endeavors to ensure that the Panel does confirm) that the Panel will not object to the lapsing of the other representations and warranties Offer as a result of the Company set forth in Article IV hereof non-satisfaction of whichever of conditions (other than the Sections of Article IV referred b) to in clause (i) or (ii) abovef), disregarding any exceptions therein relating (j) and (l) in Appendix 1 to materiality or Material Adverse Effectthe Press Release is relevant. If the Panel gives a confirmation substantially in those terms, Newco shall not be true and correct as cause Bidco to, at the earliest opportunity, declare the Offer lapsed by reason of the date of this Agreement and as of the Expiration Date as though made on or as non-fulfillment of such date except in the case of clause (iii) for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have, a Material Adverse Effect;condition(s).
(d) the Company shall not have performed If Newco or complied with in all material respects, any of its covenants Subsidiaries becomes aware (whether through notice from the Paying Agent or agreements any Lender or otherwise) of a circumstance or event which is or could reasonably be construed to be covered by any condition of the Offer (other than those contained in the Agreement at or prior paragraphs (a) to (j) of Appendix 1 to the Expiration Date Press Release) which, if not waived, would entitle Bidco (with the Panel's consent, if needed) to lapse the Offer, Newco shall cause Bidco to promptly notify the Paying Agent and, if the Majority Lenders, acting reasonably, state that in their opinion such circumstance or event would materially and adversely affect the ability of Newco and its Subsidiaries comply with its material obligations under the Loan Documents, Newco shall cause Bidco to promptly request the Panel to confirm (and shall use its reasonable endeavors to ensure that the Panel does confirm) that the Panel will not object to the extent required to be performed at or prior to the Expiration Date, which failure to perform or comply shall not have been cured at or prior to the Expiration Date;
(e) Form D approval from the insurance regulatory authority in Illinois with respect to the Transactions shall not have been received; or
(f) the Agreement shall have been terminated in accordance with its terms. The foregoing conditions shall be in addition to, and not a limitation of, the rights lapsing of Parent and Merger Sub to extend, terminate or modify the Offer pursuant to as a result of the terms and conditions of this Agreement. The foregoing conditions are for the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivablesatisfaction of that condition. If the Panel gives a confirmation substantially in those terms, may be waived by Parent Newco shall cause Bidco to not waive that condition or treat it as fulfilled and Merger Sub in whole or in part shall declare the Offer lapsed at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporationearliest opportunity.
Appears in 1 contract
Offer Conditions. Notwithstanding any other provision provisions of the Offer, Merger but subject to compliance with the terms and conditions of this Agreement, in addition to (and not in limitation of) the obligations of Acquisition Sub to extend the Offer pursuant to the terms and conditions of this Agreement, Acquisition Sub shall not be required to accept for payment, payment or, subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-1(c) promulgated under the Exchange Act, Act (relating to the obligation of Acquisition Sub to pay forfor or return tendered shares of Company Common Stock promptly after termination or withdrawal of the Offer)), pay for any shares of Company Common Stock that are validly tendered in the Offer and may delay the acceptance for payment of, any Shares tendered pursuant not withdrawn prior to the Offerexpiration of the Offer in the event that, if at or prior to the Expiration Time:
(i) the Minimum Condition there shall not have been satisfied or validly tendered and not withdrawn in accordance with the terms of the Offer a number of shares of Company Common Stock that, together with the shares of Company Common Stock then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding shares of Company Common Stock (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures) (the “Minimum Condition”);
(ii) any waiting period (and extensions thereof) applicable to the transactions contemplated by this Agreement under the HSR Act shall not have expired or been terminated; or
(iii) any of the following conditions existsshall have occurred and continue to exist as of immediately prior to Expiration Time:
(aA) the Special Committee any Governmental Authority of competent jurisdiction shall have (i) enacted, issued or the Company Board (acting based on the recommendation of the Special Committee) has made a Change in Recommendation such promulgated any Law that the Special Committee Recommendation or the Company Board Recommendation is not in effect as of immediately prior to the Expiration Date;
(b) there shall be in scheduled expiration of the Offer and has the effect any Order of making the Offer or Law issued, enacted the Merger illegal or promulgated by any court which has the effect of competent jurisdiction or other Governmental Entity that restrains, enjoins prohibiting or otherwise prohibits preventing the consummation of the Offer or the Merger or (ii) issued or granted any Order that is in effect as of immediately prior to the scheduled expiration of the Offer and has the effect of making the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the Offer or the Merger;
(cB) (i1) any representation or warranty of the Company contained in Section 3.11(a) (Absence of Certain Changes) shall fail to be true and correct in all respects, as of the date of the Agreement and as of the Expiration Time with the same force and effect as if made on and as of such date; (2) any of the representations and warranties set forth in Sections 3.1 (Organization; Good Standing), 3.2 (Corporate Power; Enforceability), 3.3 (Requisite Stockholder Approval), 3.25 (Brokers), 3.26 (Opinion of Financial Advisor) and 3.27 (State Anti-Takeover Statutes) (collectively, the “Fundamental Representations”) shall not be true and correct in all material respects (disregarding any “materiality,” “Company Material Adverse Effect” or other similar qualifications set forth in all such representations or warranties) as of the date of the Agreement and as of the Expiration Time as though made as of the Expiration Time (other than any such representation or warranty that is made only as of a specified date, which need only to be true and correct in all material respects as of such specified date); (3) the representations and warranties set forth in Section 3.6 (Company Capitalization) (the “Capitalization Representation”) shall not be true and correct where the failure to be true and correct would reasonably be expected to result in cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate, of more than $1,250,000) as of the date of the Agreement and as of the Expiration Time, as though made as of the Expiration Time, and (4) any of the representations and warranties of the Company set forth in Section 4.07(b) (Absence of Certain Changes) shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date, (ii) any of the representations and warranties set forth in parts (a) and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative to this Agreement) shall not be true and correct in all material respects as of the date of this Agreement and as of the Expiration Date as though made on or as of such date or (iii) any of the other representations and warranties of the Company set forth in Article IV hereof (other than the Sections of Article IV referred to representations in clause (i) Section 3.11(a)), the Fundamental Representations or (ii) abovethe Capitalization Representation), disregarding any exceptions therein relating to materiality or “materiality,” “Company Material Adverse Effect, shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on ” or as of such date except in the case of clause (iii) for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have, a Material Adverse Effect;
(d) the Company shall not have performed or complied with in all material respects, any of its covenants or agreements contained in the Agreement at or prior to the Expiration Date to the extent required to be performed at or prior to the Expiration Date, which failure to perform or comply shall not have been cured at or prior to the Expiration Date;
(e) Form D approval from the insurance regulatory authority in Illinois with respect to the Transactions shall not have been received; or
(f) the Agreement shall have been terminated in accordance with its terms. The foregoing conditions shall be in addition to, and not a limitation of, the rights of Parent and Merger Sub to extend, terminate or modify the Offer pursuant to the terms and conditions of this Agreement. The foregoing conditions are for the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporation.other
Appears in 1 contract
Offer Conditions. Notwithstanding any other provision Subject to the rights and obligations of Merger Sub to extend and/or amend the OfferOffer in accordance with the terms and conditions of this Agreement, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment, payment or, subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-1(c) promulgated under the Exchange Act), to pay forfor any tendered Company Shares, and Merger Sub may (and Parent may cause Merger Sub to) pursuant to Section 1.1(e) delay the acceptance for payment ofof or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act) the payment for, any Company Shares that are validly tendered pursuant in the Offer (and not validly withdrawn) prior to the scheduled expiration of the Offer, if in the event that:
(i) at the Minimum Condition scheduled expiration of the Offer, there shall not have been satisfied or validly tendered in accordance with the terms of the Offer (after giving effect to any withdrawals of previously tendered Company Shares) a number of Company Shares that, together with the Company Shares then owned by Parent and Merger Sub (if any), represent at least a majority of all then outstanding Company Shares (the “Minimum Condition”), provided that for purposes of determining whether the Minimum Condition has been satisfied, any shares tendered in the Offer pursuant to guaranteed delivery procedures shall be included only if such shares have been delivered pursuant to such procedures;
(ii) any at the scheduled expiration of the following conditions exists:
Offer the waiting period (aand any extensions thereof) applicable to the Special Committee transactions contemplated by this Agreement (including the Offer and the Merger) under the HSR Act shall not have expired or been terminated, and/or any consents, approvals and authorizations required by Law to be obtained prior to the Company Board (acting based on the recommendation commencement of the Special Committee) has made a Change in Recommendation such that Offer under the Special Committee Recommendation or the Company Board Recommendation is not in effect as Antitrust Laws of the Expiration DateSpecified Jurisdiction shall not have been obtained (the “Regulatory Condition”);
(b) there shall be in effect any Order or Law issued, enacted or promulgated by any court of competent jurisdiction or other Governmental Entity that restrains, enjoins or otherwise prohibits the consummation of the Offer or the Merger;
(ciii) (iA) any of the representations and warranties of the Company set forth in Section 4.07(b3.21(k)(iii)—(iv) or (vi) (Absence of Certain ChangesIntellectual Property) (collectively, the “Specified Representations”) shall not be have been true and correct as of the date of this Agreement or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of such time (other than any such representation or warranty that is made only as of a specified date, which need only be true and correct as of such specified date), except solely in the Expiration Date case of this clause (A), to the extent that the facts and circumstances causing or resulting in any such representations and warranties not to be true and correct as though made on of the date hereof, as of the relevant specified date, or as of such dateimmediately prior to the scheduled expiration of the Offer, as applicable, have not had, and would not reasonably be expected to have, individually or in the aggregate, a material and adverse impact on the business or operations of Parent (iinot including, for the avoidance of doubt, the business and operation of the Surviving Corporation and any of its Subsidiaries); (B) any of the representations and warranties set forth in parts Section 3.1(a) (a) Organization and Good Standing), Section 3.2 (b) of Authorization and Enforceability), Section 4.02 3.28 (CapitalizationBrokers) and Section 4.03 3.29 (Authority Relative to this AgreementNo Rights Plan) (collectively, the “Fundamental Representations”) shall not be have been true and correct in all material respects as of the date of this Agreement or shall not be true and correct in all material respects as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of such time (other than any such representation or warranty that is made only as of a specified date, which need only be true and correct in all material respects as of such specified date); (C) the Expiration Date representations and warranties set forth in paragraphs (a), (b) or (d) of Section 3.5 (Capitalization) of this Agreement (the “Capitalization Representation”) shall not have been true and correct as though of the date hereof, or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer, with the same force and effect as if made on or and as of such date (other than any such representation or warranty that is made only as of a specified date, which need only be true and correct as of such specified date), except solely in the case of this clause (C), if one or more inaccuracies in the representations and warranties set forth in paragraph (a) (other than the last sentence of paragraph (a)), paragraph (b) (other than the third sentence of paragraph (b)) or paragraph (d) of Section 3.5 would not cause the consideration otherwise payable to the holders of Company Securities by Parent and/or Merger Sub in the Offer and the Merger to increase by $5,000,000 or more; or (iiiD) any of the other representations and warranties of the Company set forth in Article IV hereof this Agreement (other than the Sections of Article IV referred to in clause (i) or (ii) aboveSpecified Representations, the Fundamental Representations and the Capitalization Representation), disregarding any exceptions therein relating to materiality or “materiality” and “Company Material Adverse Effect” qualifications set forth in all such representations or warranties, shall not be have been true and correct as of the date of this Agreement or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of the Expiration Date such time (other than any such representation or warranty that is made only as though made on or of a specified date, which need only be true and correct in all respects as of such date specified date), except solely in the case of this clause (iii) for D), to the extent that the facts and circumstances causing or resulting in any such failures representations and warranties not to be so true and correct thatas of the date hereof, individually as of the relevant specified date, or in as of immediately prior to the aggregatescheduled expiration of the Offer, as applicable, have not had had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, that for purposes of this Section 1.1(b)(iii), clause (ii) of the Company Material Adverse Effect definition shall be disregarded;
(div) the Company shall have breached or failed to perform in any material respect (or in any respect with respect to its covenant under Section 5.2(y)(i)(A) as it relates to contracts that would have been required to be scheduled under Section 3.12(a)(iv)(A) — (E) of the Company Disclosure Schedule) any of its obligations, agreements or covenants under this Agreement to be performed or complied with on or prior to the scheduled expiration of the Offer and such breach or failure to perform shall be continuing as of immediately prior to the scheduled expiration of the Offer;
(v) any Company Material Adverse Effect shall have occurred or exist on or prior to the scheduled expiration of the Offer and shall be continuing as of immediately prior to the scheduled expiration of the Offer; provided, that for purposes of this Section 1.1(b)(v), clause (ii) of the Company Material Adverse Effect definition shall be disregarded;
(vi) the Company shall not have performed delivered to Parent and Merger Sub a certificate dated as of the date of the scheduled expiration of the Offer signed on its behalf by the Chief Executive Officer or complied with Chief Financial Officer of the Company certifying that none of the conditions set forth in all material respectsclauses (iii), any (iv) or (v) of its covenants or agreements contained in the Agreement at or this Section 1.1(b) shall have occurred and be continuing as of immediately prior to the Expiration Date to scheduled expiration of the extent required to be performed at or prior to the Expiration Date, which failure to perform or comply shall not have been cured at or prior to the Expiration DateOffer;
(evii) Form D approval from any Governmental Authority shall have (A) enacted, issued, promulgated, entered, enforced or deemed applicable to any of the insurance regulatory authority transactions contemplated by this Agreement (including the Offer or the Merger) any Law or rules of any applicable securities exchange that has the effect of making the consummation of any of the transactions contemplated by this Agreement (including the Offer and the Merger) illegal or prohibiting or otherwise preventing the consummation of any of the transactions contemplated by this Agreement (including the Offer and the Merger); (B) issued or granted any Order that remains in Illinois with respect effect and has the effect of making any of the transactions contemplated by this Agreement (including the Offer and the Merger) illegal or which has the effect of prohibiting or otherwise preventing the consummation of any of the transactions contemplated by this Agreement (including the Offer and the Merger) or (C) taken any other action that would have any of the consequences referred to in clauses (A) — (C), inclusive, of the immediately following clause (viii) of this Section 1.1(b);
(viii) there shall be pending any Legal Proceeding brought by a Governmental Authority against Parent, Merger Sub, the Company or any of their respective Affiliates (A) seeking to enjoin the acquisition by Merger Sub (or Parent on Merger Sub’s behalf) of any Company Shares tendered pursuant to the Transactions shall not Offer or, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by this Agreement or the Support Agreements (including the voting provisions thereunder), (B) seeking to impose limitations on the ability of Merger Sub (or Parent on Merger Sub’s behalf), or render Merger Sub (or Parent on Merger Sub’s behalf) unable, to (1) accept for payment, pay for or purchase some or all of the Company Shares tendered pursuant to the Offer and the Merger or (2) exercise full rights of ownership of the Company Shares, including the right to vote the Company Shares purchased by it on all matters properly presented to the Company Stockholders, (C) in connection with the transactions contemplated hereby (including the Offer and the Merger), seeking to (1) compel Parent, the Company, or any of their respective Subsidiaries to sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries, (2) compel Parent, the Company, or any of their respective Subsidiaries to conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries in any manner, or (3) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries, or (D) which otherwise would have been receiveda Company Material Adverse Effect; or
(fix) the this Agreement shall have been terminated in accordance with its terms. The foregoing terms (the conditions shall be set forth in addition toclauses (i) — (ix), and not a limitation ofinclusive, the rights of Parent and Merger Sub to extend, terminate or modify the Offer pursuant to the terms and conditions of this Agreement. The foregoing conditions are for Section 1.1(b) being referred to herein, collectively, as the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporation“Offer Conditions”).
Appears in 1 contract
Samples: Merger Agreement (Sandisk Corp)
Offer Conditions. Notwithstanding any other provision Subject to the rights and obligations of Merger Sub to extend and/or amend the OfferOffer in accordance with the terms and conditions of this Agreement, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment, payment or, subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-1(c) promulgated under the Exchange Act), to pay forfor any tendered Company Shares, and Merger Sub may (and Parent may cause Merger Sub to) pursuant to Section 1.1(e) delay the acceptance for payment ofof or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act) the payment for, any Company Shares that are validly tendered pursuant in the Offer (and not validly withdrawn) prior to the scheduled expiration of the Offer, if in the event that:
(i) at the Minimum Condition scheduled expiration of the Offer, there shall not have been satisfied or validly tendered in accordance with the terms of the Offer (after giving effect to any withdrawals of previously tendered Company Shares) a number of Company Shares that, together with the Company Shares then owned by Parent and Merger Sub (if any), represent at least a majority of all then outstanding Company Shares (the “Minimum Condition”), provided that for purposes of determining whether the Minimum Condition has been satisfied, any shares tendered in the Offer pursuant to guaranteed delivery procedures shall be included only if such shares have been delivered pursuant to such procedures;
(ii) any at the scheduled expiration of the following conditions exists:
Offer the waiting period (aand any extensions thereof) applicable to the Special Committee transactions contemplated by this Agreement (including the Offer and the Merger) under the HSR Act shall not have expired or been terminated, and/or any consents, approvals and authorizations required by Law to be obtained prior to the Company Board (acting based on the recommendation commencement of the Special Committee) has made a Change in Recommendation such that Offer under the Special Committee Recommendation or the Company Board Recommendation is not in effect as Antitrust Laws of the Expiration DateSpecified Jurisdiction shall not have been obtained (the “Regulatory Condition”);
(b) there shall be in effect any Order or Law issued, enacted or promulgated by any court of competent jurisdiction or other Governmental Entity that restrains, enjoins or otherwise prohibits the consummation of the Offer or the Merger;
(ciii) (iA) any of the representations and warranties of the Company set forth in Section 4.07(b3.21(k)(iii)–(iv) or (vi) (Absence of Certain ChangesIntellectual Property) (collectively, the “Specified Representations”) shall not be have been true and correct as of the date of this Agreement or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of such time (other than any such representation or warranty that is made only as of a specified date, which need only be true and correct as of such specified date), except solely in the Expiration Date case of this clause (A), to the extent that the facts and circumstances causing or resulting in any such representations and warranties not to be true and correct as though made on of the date hereof, as of the relevant specified date, or as of such dateimmediately prior to the scheduled expiration of the Offer, as applicable, have not had, and would not reasonably be expected to have, individually or in the aggregate, a material and adverse impact on the business or operations of Parent (iinot including, for the avoidance of doubt, the business and operation of the Surviving Corporation and any of its Subsidiaries); (B) any of the representations and warranties set forth in parts Section 3.1(a) (a) Organization and Good Standing), Section 3.2 (b) of Authorization and Enforceability), Section 4.02 3.28 (CapitalizationBrokers) and Section 4.03 3.29 (Authority Relative to this AgreementNo Rights Plan) (collectively, the “Fundamental Representations”) shall not be have been true and correct in all material respects as of the date of this Agreement or shall not be true and correct in all material respects as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of such time (other than any such representation or warranty that is made only as of a specified date, which need only be true and correct in all material respects as of such specified date); (C) the Expiration Date representations and warranties set forth in paragraphs (a), (b) or (d) of Section 3.5 (Capitalization) of this Agreement (the “Capitalization Representation”) shall not have been true and correct as though of the date hereof, or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer, with the same force and effect as if made on or and as of such date (other than any such representation or warranty that is made only as of a specified date, which need only be true and correct as of such specified date), except solely in the case of this clause (C), if one or more inaccuracies in the representations and warranties set forth in paragraph (a) (other than the last sentence of paragraph (a)), paragraph (b) (other than the third sentence of paragraph (b)) or paragraph (d) of Section 3.5 would not cause the consideration otherwise payable to the holders of Company Securities by Parent and/or Merger Sub in the Offer and the Merger to increase by $5,000,000 or more; or (iiiD) any of the other representations and warranties of the Company set forth in Article IV hereof this Agreement (other than the Sections of Article IV referred to in clause (i) or (ii) aboveSpecified Representations, the Fundamental Representations and the Capitalization Representation), disregarding any exceptions therein relating to materiality or “materiality” and “Company Material Adverse Effect” qualifications set forth in all such representations or warranties, shall not be have been true and correct as of the date of this Agreement or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of the Expiration Date such time (other than any such representation or warranty that is made only as though made on or of a specified date, which need only be true and correct in all respects as of such date specified date), except solely in the case of this clause (iii) for D), to the extent that the facts and circumstances causing or resulting in any such failures representations and warranties not to be so true and correct thatas of the date hereof, individually as of the relevant specified date, or in as of immediately prior to the aggregatescheduled expiration of the Offer, as applicable, have not had had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, that for purposes of this Section 1.1(b)(iii), clause (ii) of the Company Material Adverse Effect definition shall be disregarded;
(div) the Company shall have breached or failed to perform in any material respect (or in any respect with respect to its covenant under Section 5.2(y)(i)(A) as it relates to contracts that would have been required to be scheduled under Section 3.12(a)(iv)(A) – (E) of the Company Disclosure Schedule) any of its obligations, agreements or covenants under this Agreement to be performed or complied with on or prior to the scheduled expiration of the Offer and such breach or failure to perform shall be continuing as of immediately prior to the scheduled expiration of the Offer;
(v) any Company Material Adverse Effect shall have occurred or exist on or prior to the scheduled expiration of the Offer and shall be continuing as of immediately prior to the scheduled expiration of the Offer; provided, that for purposes of this Section 1.1(b)(v), clause (ii) of the Company Material Adverse Effect definition shall be disregarded;
(vi) the Company shall not have performed delivered to Parent and Merger Sub a certificate dated as of the date of the scheduled expiration of the Offer signed on its behalf by the Chief Executive Officer or complied with Chief Financial Officer of the Company certifying that none of the conditions set forth in all material respectsclauses (iii), any (iv) or (v) of its covenants or agreements contained in the Agreement at or this Section 1.1(b) shall have occurred and be continuing as of immediately prior to the Expiration Date to scheduled expiration of the extent required to be performed at or prior to the Expiration Date, which failure to perform or comply shall not have been cured at or prior to the Expiration DateOffer;
(evii) Form D approval from any Governmental Authority shall have (A) enacted, issued, promulgated, entered, enforced or deemed applicable to any of the insurance regulatory authority transactions contemplated by this Agreement (including the Offer or the Merger) any Law or rules of any applicable securities exchange that has the effect of making the consummation of any of the transactions contemplated by this Agreement (including the Offer and the Merger) illegal or prohibiting or otherwise preventing the consummation of any of the transactions contemplated by this Agreement (including the Offer and the Merger); (B) issued or granted any Order that remains in Illinois with respect effect and has the effect of making any of the transactions contemplated by this Agreement (including the Offer and the Merger) illegal or which has the effect of prohibiting or otherwise preventing the consummation of any of the transactions contemplated by this Agreement (including the Offer and the Merger) or (C) taken any other action that would have any of the consequences referred to in clauses (A) – (C), inclusive, of the immediately following clause (viii) of this Section 1.1(b);
(viii) there shall be pending any Legal Proceeding brought by a Governmental Authority against Parent, Merger Sub, the Company or any of their respective Affiliates (A) seeking to enjoin the acquisition by Merger Sub (or Parent on Merger Sub’s behalf) of any Company Shares tendered pursuant to the Transactions shall not Offer or, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by this Agreement or the Support Agreements (including the voting provisions thereunder), (B) seeking to impose limitations on the ability of Merger Sub (or Parent on Merger Sub’s behalf), or render Merger Sub (or Parent on Merger Sub’s behalf) unable, to (1) accept for payment, pay for or purchase some or all of the Company Shares tendered pursuant to the Offer and the Merger or (2) exercise full rights of ownership of the Company Shares, including the right to vote the Company Shares purchased by it on all matters properly presented to the Company Stockholders, (C) in connection with the transactions contemplated hereby (including the Offer and the Merger), seeking to (1) compel Parent, the Company, or any of their respective Subsidiaries to sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries, (2) compel Parent, the Company, or any of their respective Subsidiaries to conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries in any manner, or (3) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries, or (D) which otherwise would have been receiveda Company Material Adverse Effect; or
(fix) the this Agreement shall have been terminated in accordance with its terms. The foregoing terms (the conditions shall be set forth in addition toclauses (i) – (ix), and not a limitation ofinclusive, the rights of Parent and Merger Sub to extend, terminate or modify the Offer pursuant to the terms and conditions of this Agreement. The foregoing conditions are for Section 1.1(b) being referred to herein, collectively, as the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporation“Offer Conditions”).
Appears in 1 contract
Samples: Merger Agreement (Fusion-Io, Inc.)
Offer Conditions. Notwithstanding any other provision Subject to the rights and obligations of Merger Sub to extend and/or amend the OfferOffer in accordance with the terms and conditions of this Agreement, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment, payment or, subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-1(c) under the Exchange Act), to pay forfor any tendered Company Shares, and Merger Sub may (and Parent may cause Merger Sub to) pursuant to Section 1.1(e) delay the acceptance for payment ofof or, subject to any applicable rules and regulations of the SEC (including Rule 14e1(c) under the Exchange Act) the payment for, any Company Shares that are validly tendered pursuant in the Offer (and not validly withdrawn) prior to the scheduled expiration of the Offer, if in the event that:
(i) at the Minimum Condition scheduled expiration of the Offer, there shall not have been satisfied or validly tendered in accordance with the terms of the Offer (after giving effect to any withdrawals of previously tendered Company Shares) a number of Company Shares that, taken together with any Company Shares then owned by Parent and Merger Sub, represent more than 50.00% of all then outstanding Company Shares (the “Minimum Condition”); or
(ii) at the scheduled expiration of the Offer the waiting period (and any extensions thereof) applicable to the transactions contemplated by this Agreement (including the Offer and the Merger) under the HSR Act shall not have expired or been terminated (the “Regulatory Condition”); or
(iii) (A) any of the following conditions exists:
representations and warranties set forth in Section 3.1(a) (aOrganization and Good Standing), Section 3.2 (Authorization and -2- Enforceability), Section 3.31 (Brokers) and Section 3.32 (No Rights Plan) (collectively, the Special Committee or the Company Board (acting based on the recommendation of the Special Committee“Specified Representations”) has made a Change in Recommendation such that the Special Committee Recommendation or the Company Board Recommendation is shall not in effect have been true and correct as of the Expiration Date;
date of this Agreement or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of such time (other than any such representation or warranty that is made only as of a specified date, which need only be true and correct as of such specified date); (B) the representations and warranties set forth in paragraphs (a), (b) there or (d) of Section 3.5 (Capitalization) of this Agreement (the “Capitalization Representation”) shall not have been true and correct other than for de minimus inaccuracies as of the date hereof or shall not be in effect any Order or Law issued, enacted or promulgated by any court true and correct other than for de minimus inaccuracies as of competent jurisdiction or other Governmental Entity that restrains, enjoins or otherwise prohibits immediately prior to the consummation scheduled expiration of the Offer with the same force and effect as if made on and as of such date (other than any such representation or the Merger;
warranty that is made only as of a specified date, which need only be true and correct other than for de minimus inaccuracies as of such specified date); or (c) (iC) any of the representations and warranties of the Company set forth in Section 4.07(b) this Agreement (Absence of Certain Changes) other than the Specified Representations and the Capitalization Representation), disregarding any “materiality” and “Company Material Adverse Effect” qualifications set forth in all such representations or warranties, shall not be have been true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date, (ii) any of the representations and warranties set forth in parts (a) and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative to this Agreement) shall not be true and correct in all material respects as of the date of this Agreement and as of the Expiration Date as though made on or as of such date or (iii) any of the other representations and warranties of the Company set forth in Article IV hereof (other than the Sections of Article IV referred to in clause (i) or (ii) above), disregarding any exceptions therein relating to materiality or Material Adverse Effect, shall not be true and correct as of immediately prior to the date scheduled expiration of this Agreement the Offer with the same force and effect as if made on and as of the Expiration Date such time (other than any such representation or warranty that is made only as though made on or of a specified date, which need only be true and correct in all respects as of such date specified date), except in the case of this clause (iii) for C), to the extent that the facts and circumstances causing or resulting in any such failures representations and warranties not to be so true and correct thatas of the date hereof, as of the relevant specified date, as applicable, or as of immediately prior to the scheduled expiration of the Offer have not had and would not have, individually or in the aggregate, have not had and would not reasonably be expected to have, a Company Material Adverse Effect;; or
(div) the Company shall have breached or failed to perform in any material respect any of its obligations under this Agreement to be performed prior to the scheduled expiration of the Offer and such breach or failure to perform shall be continuing as of immediately prior to the scheduled expiration of the Offer; or
(v) any Company Material Adverse Effect shall have occurred or exist on or prior to the scheduled expiration of the Offer and shall be continuing as of immediately prior to the scheduled expiration of the Offer; or
(vi) the Company shall not have performed delivered to Parent and Merger Sub a certificate dated as of the date of the scheduled expiration of the Offer signed on its behalf by the Chief Executive Officer or complied with in all material respects, any Chief Financial Officer of its covenants or agreements contained in the Agreement at or prior Company to the Expiration Date to effect that the extent required to be performed at or prior to the Expiration Dateconditions set forth in clauses (iii), which failure to perform or comply shall not (iv) and (v) of this Section 1.1(b) have been cured at or prior to the Expiration Date;
(e) Form D approval from the insurance regulatory authority in Illinois with respect to the Transactions shall not have been receivedsatisfied; or
(fvii) any Governmental Authority in the United States or any other jurisdiction in which Parent, the Company or any of their respective Subsidiaries has material business or operations (the United States and any other such jurisdiction collectively being referred to herein as a “Material Jurisdiction”) shall have (A) enacted, issued, promulgated, entered, enforced or deemed applicable to any of the transactions contemplated by this Agreement (including the Offer or the Merger) any applicable Law that has the effect of making the consummation of any of the transactions contemplated by this Agreement (including the Offer and the Merger) illegal or prohibiting or otherwise preventing the consummation of any of the transactions contemplated by this Agreement (including the Offer and the Merger), (B) issued or granted any Order that remains in effect and has the effect of making any of the transactions contemplated by this Agreement (including the Offer and the Merger) illegal or which has the effect of prohibiting or otherwise preventing the consummation of any of the transactions contemplated by this Agreement (including the Offer and the Merger), or (C) taken any other action that would be reasonably expected to have any of the consequences referred to in clauses (A) – (D), inclusive, of the immediately following clause (viii) of this Section 1.1(b);
(viii) there shall be pending any Legal Proceeding brought by any Governmental Authority in any Material Jurisdiction against Parent, Merger Sub, the Company or any of their respective Affiliates (A) seeking to enjoin the acquisition by Merger Sub (or Parent on Merger Sub’s behalf) of any Company Shares pursuant to the Offer or, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by this Agreement or the Support Agreements (including the voting provisions thereunder), (B) seeking to impose limitations on the ability of Merger Sub (or Parent on Merger Sub’s behalf), or render Merger Sub (or Parent on Merger Sub’s behalf) unable, to (1) accept for payment, pay for or purchase some or all of the Company Shares pursuant to the Offer and the Merger or (2) exercise full rights of ownership of the Company Shares, including the right to vote the Company Shares purchased by it on all matters properly presented to the Company Stockholders, (C) seeking to (1) compel Parent or any of its Subsidiaries to sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries, (2) compel Parent or any of its Subsidiaries to conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries in any manner, or (3) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries, or (D) which otherwise would be reasonably expected to have a Company Material Adverse Effect; or
(ix) this Agreement shall have been terminated in accordance with its terms. The foregoing terms (the conditions shall be set forth in addition tothe preceding clauses (i) – (ix), and not a limitation ofinclusive, the rights of Parent and Merger Sub to extend, terminate or modify the Offer pursuant to the terms and conditions of this Agreement. The foregoing conditions are for Section 1.1(b) being referred to herein, collectively, as the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporation“Offer Conditions”).
Appears in 1 contract
Offer Conditions. Notwithstanding any other provision Subject to the rights and obligations of Merger Sub to extend and/or amend the Offer in accordance with the terms and conditions of the OfferAgreement, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment, payment or, subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-1(c) under the Exchange Act), to pay forfor any tendered Company Shares, and Merger Sub may (and Parent may cause Merger Sub to) delay the acceptance for payment ofof or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) under the Exchange Act) the payment for, any Company Shares that are validly tendered in the Offer (and not validly withdrawn) prior to the scheduled expiration of the Offer, in the event that:
(i) at the scheduled expiration of the Offer, there shall not have been validly tendered in accordance with the terms of the Offer (after giving effect to any withdrawals of previously tendered Company Shares) a number of Company Shares that, taken together with any Company Shares then owned by Parent and Merger Sub, represent a majority of all then outstanding Company Shares (excluding Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures) (the “Minimum Condition”); or
(ii) at the scheduled expiration of the Offer the waiting period (and any extensions thereof) applicable to the transactions contemplated by the Agreement (including the Offer and the Merger) under the HSR Act shall not have expired or been terminated (the “Regulatory Condition”); or
(iii) the Company shall have breached or failed to perform in any material respect any of its covenants under the Agreement to be performed prior to the scheduled expiration of the Offer; or
(iv) (A) any of the representations and warranties set forth in Section 3.1 (Organization and Good Standing), if Section 3.2 (iAuthorization and Enforceability), Section 3.11(a) (Absence of Certain Changes — Company Material Adverse Effect), and Section 3.29 (Brokers) (collectively, the Minimum Condition “Fundamental Representations”), shall not have been satisfied or (ii) any of the following conditions exists:
(a) the Special Committee or the Company Board (acting based on the recommendation of the Special Committee) has made a Change in Recommendation such that the Special Committee Recommendation or the Company Board Recommendation is not in effect true and correct as of the Expiration Date;
(b) there date of the Agreement or shall not be in effect any Order or Law issued, enacted or promulgated by any court true and correct as of competent jurisdiction or other Governmental Entity that restrains, enjoins or otherwise prohibits immediately prior to the consummation scheduled expiration of the Offer with the same force and effect as if made on and as of such time (other than any such representation or warranty that is made only as of a specified date, which need only to be true and correct as of such specified date); (B) the Merger;
representations and warranties set forth in Section 3.5 (cCapitalization) (ithe “Capitalization Representation”) shall not have been true and correct as of the date of the Agreement or shall not be true and correct as of immediately prior to the scheduled expiration of the Offer with the same force and effect as if made on and as of such time (other than any such representation or warranty that is made only as of a specified date, which need only to be true and correct as of such specified date), except where the failure to be true and correct would not reasonably be expected to result in additional cost, expense or liability to the Company, Parent and their Affiliates, individually or in the aggregate, of more than $2.5 million; and (C) any of the representations and warranties of the Company set forth in Section 4.07(b) the Agreement (Absence other than the Fundamental Representations and the Capitalization Representation), disregarding any “materiality,” “Company Material Adverse Effect” or other similar qualifications set forth in all such representations or warranties, shall not have been true and correct as of Certain Changes) the date of the Agreement or shall not be true and correct as of immediately prior to the date scheduled expiration of this Agreement the Offer with the same force and effect as if made on and as of the Expiration Date as though such time (other than any such representation or warranty that is made on or only as of such a specified date, (ii) any of the representations and warranties set forth in parts (a) and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative which need only to this Agreement) shall not be true and correct in all material respects as of the date of this Agreement and as of the Expiration Date as though made on or as of such date specified date), except in the case of this clause (C), to the extent that the facts and circumstances causing or (iii) resulting in any of the other such representations and warranties of the Company set forth in Article IV hereof (other than the Sections of Article IV referred not to in clause (i) or (ii) above), disregarding any exceptions therein relating to materiality or Material Adverse Effect, shall not be true and correct as of the date hereof or as of this Agreement and immediately prior to the scheduled expiration of the Offer (or as of the Expiration Date as though made on or as of such date except specified in the case of clause (iiirepresentation or warranty) for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;; or
(dv) any Company Material Adverse Effect shall have occurred on or prior to, and shall be continuing on the date of, the scheduled expiration of the Offer; or
(vi) the Company shall not have performed delivered to Parent and Merger Sub a certificate dated as of the date of the scheduled expiration of the Offer signed on its behalf by the Chief Executive Officer or complied with in all material respects, any Chief Financial Officer of its covenants or agreements contained in the Agreement at or prior Company to the Expiration Date to effect that the extent required to be performed at or prior to the Expiration Dateconditions set forth in clauses (iii), which failure to perform or comply shall not (iv) and (v) of this Section 1.1(b) have been cured at or prior to the Expiration Date;
(e) Form D approval from the insurance regulatory authority in Illinois with respect to the Transactions shall not have been receivedsatisfied; or
(fvii) any Governmental Authority shall have (A) enacted, issued, promulgated, entered, enforced or deemed applicable to any of the transactions contemplated by the Agreement shall have been terminated (including the Offer or the Merger) any applicable Law that has the effect of making the consummation of any of the transactions contemplated by the Agreement (including the Offer and the Merger) illegal or prohibiting or otherwise preventing the consummation of any of the transactions contemplated by the Agreement (including the Offer and the Merger), or (B) issued or granted any Order that remains in accordance with its terms. The foregoing conditions effect and has the effect of making any of the transactions contemplated by the Agreement (including the Offer and the Merger) illegal or which has the effect of prohibiting or otherwise preventing the consummation of any of the transactions contemplated by the Agreement (including the Offer and the Merger); or
(viii) there shall be in addition topending any Legal Proceeding brought by any Governmental Authority against Parent, and not a limitation ofMerger Sub, the rights Company or any of Parent and their respective Affiliates (A) seeking to enjoin the acquisition by Merger Sub to extend, terminate (or modify the Offer Parent on Merger Sub’s behalf) of any Company Shares pursuant to the terms and conditions of this Agreement. The foregoing conditions are for Offer or, seeking to restrain or prohibit the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole making or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations consummation of the SEC. The failure by Parent and Offer or the Merger Sub at any time to exercise or the performance of any of the foregoing other transactions contemplated by the Agreement or the Support Agreements (including the voting provisions thereunder), (B) seeking to impose limitations on the ability of Merger Sub (or Parent on Merger Sub’s behalf), or render Merger Sub (or Parent on Merger Sub’s behalf) unable, to (1) accept for payment, pay for or purchase some or all of the Company Shares pursuant to the Offer and the Merger or (2) exercise full rights shall not be deemed a waiver of ownership of the Company Shares, including the right to vote the Company Shares purchased by it on all matters properly presented to the Company Stockholders, (C) seeking to (1) compel Parent or any of its Subsidiaries to sell, license, assign, transfer, divest, hold separate or otherwise dispose of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name assets, business or portion of business of the Corporation is CNA Surety Company, the Surviving Corporation., Parent, Merger Sub or any of their respective Subsidiaries, (2) compel Parent or any of its Subsidiaries to conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries in any manner, or (3) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries, or
Appears in 1 contract
Samples: Acquisition Agreement (Rally Software Development Corp)
Offer Conditions. Notwithstanding any other provision Subject to the rights and obligations of Merger Sub to extend and/or amend the OfferOffer in accordance with the terms and conditions of this Agreement, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment, payment or, subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-1(c) promulgated under the Exchange Act), to pay forfor any tendered Company Shares, and Merger Sub may (and Parent may cause Merger Sub to) pursuant to Section 1.1(e) delay the acceptance for payment ofof or, subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act) the payment for, any Company Shares that are validly tendered pursuant in the Offer (and not validly withdrawn) prior to the Offerscheduled Expiration Time, if in the event that:
(i) at the Minimum Condition Expiration Time, there shall not have been satisfied or validly tendered in accordance with the terms of the Offer (after giving effect to any withdrawals of previously tendered Company Shares) a number of Company Shares that, together with the Company Shares then owned by Parent and Merger Sub (if any), represent at least a majority of all then outstanding Company Shares (the “Minimum Condition”), provided that for purposes of determining whether the Minimum Condition has been satisfied, any shares tendered in the Offer pursuant to guaranteed delivery procedures shall be included only if such shares have been delivered pursuant to such procedures and in accordance with Section 251(h) of the DGCL;
(ii) any of the following conditions exists:
(a) the Special Committee or the Company Board (acting based on the recommendation of the Special Committee) has made a Change in Recommendation such that the Special Committee Recommendation or the Company Board Recommendation is not in effect as of at the Expiration DateTime, the waiting period (and any extensions thereof) applicable to the transactions contemplated by this Agreement (including the Offer and the Merger) under the HSR Act shall not have expired or early termination of such waiting period shall not have been granted (the “Regulatory Condition”);
(b) there shall be in effect any Order or Law issued, enacted or promulgated by any court of competent jurisdiction or other Governmental Entity that restrains, enjoins or otherwise prohibits the consummation of the Offer or the Merger;
(ciii) (i) any of the representations and warranties of the Company set forth in Section 4.07(b) (Absence of Certain Changes) shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date, (iiA) any of the representations and warranties set forth in parts Section 3.1(a) (aOrganization and Good Standing) Section 3.2 (Authorization and (b) of Section 4.02 (Capitalization) and Section 4.03 (Authority Relative to this Agreement) shall not be true and correct in all material respects as of the date of this Agreement and as of the Expiration Date as though made on or as of such date or (iii) any of the other representations and warranties of the Company set forth in Article IV hereof (other than the Sections of Article IV referred to in clause (i) or (ii) aboveEnforceability), disregarding any exceptions therein relating to materiality or Material Adverse Effect, shall not be true and correct as of the date of this Agreement and as of the Expiration Date as though made on or as of such date except in the case of clause Section 3.27 (iii) for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have, a Material Adverse Effect;
(d) the Company shall not have performed or complied with in all material respects, any of its covenants or agreements contained in the Agreement at or prior to the Expiration Date to the extent required to be performed at or prior to the Expiration Date, which failure to perform or comply shall not have been cured at or prior to the Expiration Date;
(e) Form D approval from the insurance regulatory authority in Illinois with respect to the Transactions shall not have been received; or
(f) the Agreement shall have been terminated in accordance with its terms. The foregoing conditions shall be in addition to, and not a limitation of, the rights of Parent and Merger Sub to extend, terminate or modify the Offer pursuant to the terms and conditions of this Agreement. The foregoing conditions are for the benefit of Parent and Merger Sub and, except for the Minimum Condition which shall be non-waivable, may be waived by Parent and Merger Sub in whole or in part at any time and from time to time in their sole discretion, in each case, subject to the applicable rules and regulations of the SEC. The failure by Parent and Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. FIRST. The name of the Corporation is CNA Surety Corporation.Brokers),
Appears in 1 contract
