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Common use of Offer Clause in Contracts

Offer. (a) As soon as practicable after the date hereof, the Company will amend its Offer to Purchase dated February 19, 1999 to provide that the Offer, as amended, will be at a price per Share equal to the Offer Price (less, in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer (the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (b) Subject to the terms and conditions of the Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such comments. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Building One Services Corp), Securities Purchase Agreement (Boss Investment LLC)

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Offer. (a) As soon as practicable after Promptly upon the occurrence of any lapse or withdrawal of the Offer or the end of the Certain Funds Period or the date hereofthe Offer is declared unconditional as to acceptances or wholly unconditional or finally closed in accordance with the City Code, the Company will amend its Offer give notice to Purchase dated February 19, 1999 to provide the Administrative Agent (who shall notify the Lenders) that the Offer, as amended, will be at a price per Share equal to the Offer Price (less, in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer (the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waivedsame has occurred. (b) Subject to the terms and conditions Promptly upon satisfaction of the condition specified in Section 429 (1) or (2) of Companies Act for giving a notice under that Section in respect of any Shares and the Offer and this Section 2.3becoming or being declared unconditional in all respects, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million (a) implement the procedures set out in Section 429 et seq. of the Companies Act to acquire any outstanding Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant (b) use all commercially reasonable endeavors to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration acquire 100 per cent of the OfferShares as promptly as practicable. (c) On The Company covenants and agrees that without the date of amendment prior written agreement of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, Syndication Agent and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and Administrative Agent the Company will not file (i) issue or cause to be issued (or permit any other Affiliate of the Company to issue) any press release or other written public statement, the relevant portion of the text of which has not been previously approved by the Syndication Agent and the Administrative Agent (which such approval shall not be unreasonably withheld or delayed), which makes reference to this Agreement or to some or all of the Lenders in relation to this Agreement unless the public statement is required by applicable law, the City Code or any stock exchange or is in connection with any judicial proceeding concerning this Agreement (in which case the Company shall notify the Syndication Agent and the Administrative Agent and the Lenders as soon as practicable upon becoming aware that the public statement is required) (provided that the Syndication Agent, the Administrative Agent and the Lenders acknowledge that, pursuant to the City Code, (X) a summary of the principal terms of this Agreement will be disclosed in the Offer Document, and (Y) this Agreement will be available for public inspection while the Offer remains open for acceptance) or (ii) take or permit to be taken any step as a result of which the cash portion of the offer price stated in the Offer Document with is, or may be required to be, increased beyond the Commission or disseminate any Offer Document to its stockholders without level agreed between the prior written consent of Company, the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments Syndication Agent and the Company will provide Administrative Agent from time to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentstime. (d) Each Share purchased The Company covenants and agrees that, in respect of the Offer, it will comply with the City Code (subject to any applicable waivers by the Panel), the Financial Services Act 0000, xxe Companies Act and all other applicable laws relevant to the Offer in all material respects. (e) Unless to do so would be a breach of any other provision of this Section 5.08, the Company covenants and agrees that it will from time to time keep the Syndication Agent and the Administrative Agent informed as to the status and progress of the Offer and, in particular, will from time to time upon request give to the Syndication Agent and the Administrative Agent reasonable details as to the current level of acceptances of the Offer and such other matters relevant to the Offer as the Syndication Agent and the Administrative Agent may reasonably request. (f) The Company covenants and agrees, in any event, to give notice to lapse the Offer in the event that 120 days after Announcement Date the Offer has not been declared wholly unconditional as to acceptances, unless the Required Lenders agree in their absolute discretion to extend such period. (g) The Company covenants and agrees to procure that, as soon as legally and practically possible after the date the Offer becomes or is declared unconditional in all respects the Target shall automatically be cancelled removed from the Official List of the London Stock Exchange Limited and retired and shall cease to existre-registered as a private company.

Appears in 2 contracts

Samples: Credit Agreement (Amerada Hess Corp), Credit Agreement (Amerada Hess Corp)

Offer. (a) As soon as practicable after Provided that this Agreement shall not have been terminated in accordance with Section 7.1, and none of the date hereofevents or conditions listed in clause (c) of Annex I hereto (“Annex I”) shall have occurred and be continuing, Purchaser shall, and Parent shall cause Purchaser to, commence (within the Company will amend its Offer to Purchase dated February 19, 1999 to provide that meaning of Rule 14d-2 under the OfferSecurities Exchange Act of 1934, as amended, will be at a price per Share equal to and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer Price as promptly as reasonably practicable following the Go-Shop Period Termination Date, but no later than five (less, 5) Business Days thereafter (or such other date as the parties may mutually agree in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer (the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(bwriting), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (b) Subject to (i) there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of Shares that, together with (x) the number of Shares, if any, then owned of record by Parent or Purchaser or with respect to which Parent or Purchaser otherwise has, directly or indirectly, sole voting power, and (y) the number of shares of Company Common Stock that are issuable upon exercise of Options, that are held in trust pursuant to the Company's Director Stock Unit Program or that constitute restricted shares, in each case whose holders have executed the Stockholders’ Agreement, represents at least two-thirds (⅔) of all outstanding Shares (determined on a Fully Diluted Basis and inclusive of those Shares tendered pursuant to the Stockholders’ Agreement) entitled to vote (A) in the election of directors, (B) upon the adoption of this Agreement and approval of the Merger, and (C) upon an amendment of the Company’s Charter, on the date Shares are accepted for payment (collectively, the “Minimum Condition”) and (ii) the satisfaction or waiver by Parent or Purchaser of the other conditions and requirements set forth in Annex I, Purchaser shall, and Parent shall cause Purchaser to, accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable after Purchaser is legally permitted to do so under applicable Law (the date and time of acceptance for payment, the “Acceptance Time”). Parent shall provide or cause to be provided to Purchaser on a timely basis funds sufficient to purchase and pay for any and all Shares that Purchaser becomes obligated to accept for payment and purchase pursuant to the Offer. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the holder of such Share in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e). (c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. Parent and Purchaser expressly reserve the right to increase the Offer Price, waive any condition to the Offer (except the Minimum Condition) or to make any other changes in the terms and conditions of the Offer; provided, however, that, unless previously approved by the Company in writing, Purchaser shall not (i) decrease the Offer Price payable in the Offer, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend or modify the other conditions set forth in Annex I in a manner adverse to the holders of Shares, (vi) extend the Expiration Date other than in accordance with this Section 2.3Agreement, or (vii) amend any other term of the Offer in a manner adverse to the holders of Shares. (d) Subject to the provisions of this Agreement, unless extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m. (Central Daylight Saving Time) on the date that is twenty (20) Business Days following the commencement of the Offer (the “Initial Expiration Date”) or, if the Offer has been extended in accordance with this Agreement, at the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Offer has been extended in accordance with this Agreement, the “Expiration Date”). (e) If, on or prior to any then scheduled Expiration Date, any of the conditions of the Offer is not satisfied or waived, Purchaser may (without the consent of the Company) extend the Offer for one or more additional periods of up to twenty (20) Business Days with such length as Purchaser determines consistent with applicable Law, provided that each such extension shall be for not more than ten (10) Business Days if all of the conditions set forth on Annex I other than the Minimum Condition have been satisfied or waived at such then scheduled Expiration Date. If, on or prior to any then scheduled Expiration Date, the Minimum Condition is not satisfied, Purchaser shall (to the extent requested in writing by the Company) extend the Offer for up to two periods of not less than ten (10) Business Days each and up to twenty (20) Business Days each with such lengths as Purchaser determines consistent with applicable Law. In addition, Purchaser shall extend the then scheduled Expiration Date for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the Securities and Exchange Commission (the “SEC”) or its staff or NASDAQ. (f) If the Minimum Condition has been satisfied but the number of Shares that have been accepted for payment pursuant to the Offer (after giving effect to any proper withdrawal of Shares prior to the Expiration Date but without giving effect to Shares issuable upon the exercise of the Top-Up Option), together with (x) the number of Shares, if any, then owned of record by Parent or Purchaser or with respect to which Parent or Purchaser otherwise has, directly or indirectly, sole voting power, and (y) the number of shares of Company Common Stock that are issuable upon exercise of Options, that are held in trust pursuant to the Company's Director Stock Unit Program or that constitute restricted shares, in each case whose holders have executed the Stockholders’ Agreement, represents less than eighty percent (80%) of all outstanding Shares (determined on a Fully Diluted Basis), Purchaser may, in its sole discretion, provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act. Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall, and Parent shall cause Purchaser to, immediately accept for payment, and pay for, not less ----------- than 21.0 million all Shares and not more than 26.5 million Shares that are validly tendered and not withdrawn pursuant to the Offer that during such “subsequent offering period.” The Offer Documents shall provide for the Company becomes obligated possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f). (g) Purchaser shall not terminate the Offer prior to accept for paymentany scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article VII. If this Agreement is terminated pursuant to Article VII, Purchaser shall, and pay forParent shall cause Purchaser to, promptly (and in any event within twenty-four (24) hours of such termination) terminate the Offer and shall not acquire Shares pursuant thereto. If the Offer is terminated by Purchaser, or this Agreement is terminated prior to the Offer as purchase of Shares in the Offer, Purchaser shall promptly return, and shall cause any depositary acting on behalf of Purchaser to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof. (h) As soon as practicable after the expiration of the Offer. (c) On on the date of amendment the commencement of the Offer, the Company Parent and Purchaser shall file with the SEC SEC, in compliance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- TO with respect to the OfferOffer (together with all amendments, 6 which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain include, as exhibits: the Offer to Purchase, a form of letter of transmittal, the notice of guaranteed delivery, a form of summary advertisement and other ancillary Offer documents and instruments required by the Exchange Act pursuant to which the Offer shall be made (collectively, together with any amendments and supplements thereto, the “Offer Documents”). The Parent and Purchaser agree to cause the Offer Documents shall comply to be disseminated to holders of Shares, as and to form in all material respects with the extent required by the Exchange Act. Parent and Purchaser, on the one hand, and the Offer DocumentsCompany, on the date first publishedother hand, sent or given agree to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it such party for use in the Offer Documents Documents, if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law, and the Company further agrees to take all steps necessary Parent and Purchaser agree to cause the Schedule 13E-4 Offer Documents, as so corrected corrected, to be filed with the Commission SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the InvestorExchange Act. The Company agrees to provide the Investor and its counsel any comments shall be given a reasonable opportunity to review the Schedule TO and the Offer Documents before they are filed with the SEC, and Parent and Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, Purchaser or its their counsel may receive from time to time from the Commission SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after the receipt of such comments comments, and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In the event that Parent and Purchaser receive any comments from the SEC or its staff with respect to the Schedule TO or the Offer Documents, they shall use their respective reasonable best efforts to respond promptly to such comments. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 2 contracts

Samples: Merger Agreement (North American Galvanizing & Coatings Inc), Merger Agreement (Azz Inc)

Offer. (a) As Provided that this Agreement shall not have been terminated in ----- accordance with Article IX hereof and none of the events set forth in Annex A hereto shall have occurred on or after the date hereof or be existing, as soon as practicable after the date hereof, and in any event within five (5) business days of the Company date hereof, Purchaser will amend its Offer to Purchase dated February 19, 1999 to provide that commence (within the Offermeaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, will be and the rules and regulations thereunder (the "Exchange Act")) a tender offer (the "Offer") for all of the outstanding shares (the "Shares") of common stock, par value U.S. $0.001 per share of the Company (the "Common Stock"), at a price of U.S. $29.00 per Share equal Share, net to the Offer Price (lessseller, in cash (the case of Shares issuable upon "Stock Price"), such Offer to be subject only to the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer Annex A hereto (the "Offer Conditions") may be waived ). If the Merger Agreement is terminated in whole or in partaccordance with its terms, and Purchaser shall terminate the Offer ---------------- shall not be terminated, without Offer. Without the prior written consent of the Investor Company, Purchaser shall not (and Parent shall not cause Purchaser to) (i) decrease the Company Stock Price or change the form of consideration therefor or decrease the number of Shares sought pursuant to the Offer, (ii) change the Offer Conditions, (iii) impose additional conditions to the Offer, (iv) waive the condition that there shall be validly tendered and not withdrawn prior to the time the Offer expires a number of Shares of Common Stock which together with all Shares owned by Parent, Purchaser and their respective Affiliates (as defined in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent 10.9) constitutes a majority of the InvestorShares outstanding on a fully diluted basis on the date of purchase, (v) amend any term of the Offer in any manner adverse to holders of Shares or (vi) extend the Offer periodically through expiration date of the Outside Date if at Offer; provided however that the then scheduled or any extended expiration date of the Offer may be extended from time to time at the sole discretion of Purchaser (i) in order to comply with any provision of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and the rules and regulations thereunder or otherwise comply with law for the minimum period of time reasonably necessary to so comply and (ii) if any of the Offer Conditions shall not be satisfied for the minimum period of time reasonably necessary to satisfy such conditions, but in either case, such extension shall not extend beyond September 2, 1997. Assuming the prior satisfaction or waived, until such time as such conditions are satisfied or waived. (b) Subject to the terms and conditions waiver of the Offer and this Section 2.3Conditions on the expiration date of the Offer, the Company Purchaser shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million in accordance with the terms of the Offer, all Shares validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon promptly as practicable after the expiration date thereof. The Company hereby consents to the Offer and represents that (a) its Board of Directors, at a meeting duly called and held at which a majority of the Offer. directors were present, (ci) On determined that each of the date Offer and the Merger (as hereinafter defined) is fair to and in the best interests of amendment the holders of the Shares, (ii) resolved to recommend acceptance of the Offer and approval and adoption of this Agreement and the transactions contemplated hereby by the stockholders of the Company; provided, -------- however, that such recommendation may be withdrawn, modified or ------- amended if the Company's Board of Directors determines, following the receipt of advice of counsel, that it is required to do so in the exercise of its fiduciary obligations under applicable law, (iii) approved the transactions contemplated by the Tender Agreement and (iv) irrevocably approved the Offer, the Company shall file with Merger, this Agreement and the SEC a Tender Offer Statement on Schedule 13E-4 Agreement as provided in Section 203(a) of the General Corporation Law of the State of Delaware (the "Schedule 13E-4DGCL") -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply in such manner as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements thereinrestrictions contained therein inapplicable to the transactions contemplated by this Agreement and the Tender Agreement (the "Section 203 Approval"), in light and (b) Xxxxxxx, Xxxxxx & Co. ("CWC") has advised the Board of Directors of the circumstances under which they were madeCompany that, not misleadingbased on certain assumptions and subject to certain limitations, except that no representation or warranty is made the Stock Price to be received by the Company with respect to written information supplied by or on behalf public holders of the Investor for inclusion or incorporation by reference Shares in the Offer Documents. The Investor and the Company each agrees promptly Merger is fair from a financial point of view to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsholders. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 2 contracts

Samples: Agreement and Plan of Merger and Reorganization (Seawolf Acquisition Corp), Merger Agreement (Seda Specialty Packaging Corp)

Offer. (a) As soon Parent shall cause Newco, as promptly as reasonably practicable after the date hereof, but in no event later than five (5) U.S. Business Days following the Company will amend its public announcement of the terms of this Agreement, to commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to Purchase dated February 19, 1999 to provide that purchase any and all of the Offer, as amended, will be issued and outstanding shares (the "Shares") of Company Common Stock (other than those Shares currently owned by Newco or Parent) at a price of $12.00 per Share equal Share, net to the seller in cash (or at such higher price as Newco elects to offer) (the "Offer Price (lessPrice"), in but subject to any withholding required by law, provided, that Newco shall not be required to commence the case Offer if an event shall have occurred that, had the Offer already been commenced, would give rise to a right to terminate the Offer under any of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this AgreementAnnex II hereto. No condition The Offer shall have a scheduled expiration date not less than twenty (20) U.S. Business Days following the commencement thereof. The obligation of Parent and Newco to accept and pay for Shares tendered shall be subject to the offer condition that there shall be validly tendered prior to the expiration date of the Offer and not withdrawn a number of Shares which, when added to the Shares owned by Parent, represent at least 51% of the Shares issued and outstanding on a fully diluted basis (the "Offer ConditionsMinimum Condition") and to the other conditions set forth in Annex II. Parent and Newco expressly reserve the right to waive the Minimum Condition or any of the other conditions to the Offer, to increase the price per Share payable in the Offer and to make any other change or changes in the terms or conditions of the Offer, including without limitation extending the expiration date, provided, that no change may be waived made that changes the form of consideration to be paid or decreases the price per Share or the number of Shares sought in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject or which imposes conditions to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if in addition to those set forth in Annex II. If at the then any scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (b) Subject to the terms and conditions of the Offer and this Section 2.3have not been satisfied or waived by Parent, but in the reasonable, good faith judgment of the Company are capable of being satisfied within a period not to exceed twenty (20) U.S. Business Days, then, at the written request of the Company, Parent and Newco shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to extend the Offer that the Company becomes obligated for such period, to accept for paymenta maximum of twenty (20) U.S. Business Days, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer. (c) On but not in any event beyond the date of amendment of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4"specified in Section 7.1(b)(i)(B) -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentshereof. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 2 contracts

Samples: Merger Agreement (Amdahl Corp), Merger Agreement (Fujitsu LTD/Jp/)

Offer. (a) As soon Provided that this Agreement shall not have been terminated in accordance with Section 8.1 hereof the Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, hereof .. (b) The Offer was formally presented by the Company will amend its Offer on behalf of the Purchaser to Purchase dated February 19, 1999 to provide that the Offer, as amended, will be Company’s shareholders at a price per Share equal minimum of 20 days prior to the execution and closing date of this Agreement. (c) The Offer Price has been made to the Company on the basis of 500 shares of IMA Common Stock (less, as defined in the case of Shares issuable upon the conditional exercise Section 4.2) in exchange for each one (1) share of Company Capital Stock. (d) The Offer has now been deemed accepted by a minimum of 75% of the Company’s shareholders as of the date of signing and closing should no contestation have been so presented by any of the Company shareholders prior to this date. (e) The obligation of the Purchaser to accept for payment and pay for shares of Company Capital Stock Options, shall be subject to the exercise price thereof) satisfaction of the condition that there be validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of SSG Common Stock that represents at least 75% of the then outstanding shares of SSG Common Stock and to disclose the terms and satisfaction or waiver by the Purchaser of the other conditions set forth in this Agreement. No condition to the offer (the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waivedherein. (bf) In the event the Purchaser should receive valid acceptances of the Company’s shareholders holding at least 90% of the Company’s Capital Stock then it shall exercise its right in accordance with sections 974 to 991 of the Companies Acx 0000 (enacted in the United Kingdom) to compulsorily acquire the remaining 10% of the Company’s Capital Stock on the same terms as the Offer. (g) The Company agrees that no shares of the Company’s Capital Stock held by the Company or any of its Subsidiaries (as defined in Section 9.11 hereof) will be tendered to the Purchaser pursuant to the Offer. (h) Subject to the terms and conditions of the Offer and this Section 2.3Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth hereto, the Company Purchaser shall accept for payment, payment and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares for all shares of Company Capital Stock validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offerit is permitted to do so under applicable law. (c) On the date of amendment of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such comments. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 2 contracts

Samples: Agreement of Securities Exchange and Plan of Reorganization (INTERACTIVE MULTI MEDIA AUCTION Corp), Agreement of Securities Exchange and Plan of Reorganization (INTERACTIVE MULTI MEDIA AUCTION Corp)

Offer. (a) As soon as practicable The Company and the Accepting Eligible Offerees, after receipt of the date hereofReceipt Notice, shall evidence their acceptance of election to purchase the Company will amend its shares remaining under the Second Chance Offer by delivering to Purchase dated February 19the Company, 1999 within 5 days of the expiration of the 10-day period referenced in Section 4.2, a written notice of intent to provide that purchase their respective portions of the shares under the Second Chance Offer. The Company, as amendedin turn, will be at a price per Share equal shall promptly give written notice to any Holder, or any other party, required to sell the Shares Subject to the Offer Price (less, in the case of Shares issuable upon the conditional exercise its receipt of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer such notices (the "Offer ConditionsSecond Receipt Notice") may be waived and shall include in whole such Second Receipt Notice a copy of all such Accepting Eligible Offerees second acceptance or in part, and election notices. If the Offer ---------------- shall not be terminated, without Accepting Eligible Offerees and/or the prior written consent Company have elected to purchase all of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (b) Shares Subject to the terms and conditions Offer without the necessity of the Offer and this Section 2.3Second Chance Offer, the Company shall accept for payment, purchase and pay for, not less ----------- than 21.0 million sale of the Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant Subject to the Offer that shall be consummated at a closing held at the Company's principal office (unless otherwise agreed) within 30 days after the delivery of the Receipt Notice. If the Accepting Eligible Offerees and/or the Company becomes obligated have elected to accept for payment, and pay for, pursuant purchase all of the Shares Subject to the Offer as soon as practicable after the occurrence of the Second Chance Offer, the purchase and sale of the Shares Subject to the Offer shall be consummated at a closing held at the Company's principal office (unless otherwise agreed) within 40 days after the expiration of the Offer. (c) On the date of amendment delivery of the OfferReceipt Notice. At the closing, the Company purchasing Eligible Offeree(s) shall file with deliver payment of the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect Purchase Price as provided in Section 4.5 to the Offer, 6 which shall contain transferor of the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange ActStock or such transferor's representative, and the Offer Documents, on transferor of the date first published, sent Stock or given such transferor's representative shall deliver to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such comments. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.purchasing Eligible Offeree(s)

Appears in 1 contract

Samples: Class B Stockholders Agreement (Franklin Bank Corp)

Offer. The Tevva Shareholder hereby irrevocably undertakes, covenants and agrees in favour of EMV to: (a) As soon as practicable after the date hereof, the Company will amend its Offer to Purchase dated February 19, 1999 to provide that the Offer, as amended, will be at a price per Share equal to accept the Offer Price within five Business Days of receiving the Offer and (less, in so far as it is within the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereofTevva Shareholder’s power to do so) and to disclose the terms and conditions set forth in this Agreement. No condition procure to the offer (the "Offer Conditions") be done all such things as may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject required to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until give effect to such time as such conditions are satisfied or waived.acceptance; (b) Subject procure that a Drag Along Notice (as such term is defined in Tevva’s Articles) is executed and delivered to Tevva as soon as reasonably possible after, and in any event within five Business Days of the requisite number of Tevva shareholders having accepted the Offer; (c) complete, execute and deliver (subject to completion of the sale of the entire issued share capital in Tevva to Holdco as envisaged in the Offer and the Arrangement) to Tevva the following documents within two Business Days of the same being sent to the terms and conditions Tevva Shareholder (the "Documents”), provided such Documents are in a reasonable form, in order to give effect to the transactions contemplated by the Arrangement Agreement: (i) a stock transfer form or stock transfer forms in respect of all Tevva Shares owned by the Tevva Shareholder to be sold to Holdco pursuant to the Tevva Shareholder’s acceptance of the Offer (which, for the avoidance of doubt, will include without limitation any Tevva Shares acquired by or issued to the Tevva Shareholder after acceptance of the Offer and this Section 2.3prior to the Effective Time) (the “Sale Shares”); (ii) if requested by EMV, a declaration of trust in favour of Hxxxxx in respect of the Company beneficial ownership of the Sale Shares, whereby the Tevva Shareholder shall accept for payment, and pay for, not less ----------- than 21.0 million irrevocably declare that (a) the entire beneficial interest in the Sale Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant (b) all rights attaching to the Offer that the Company becomes obligated Sale Shares and all dividends and other distributions and money and such assets from time to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration time received or arising in respect of the Offer. (c) On Sale Shares are held from the date of amendment the declaration of trust absolutely by the Tevva Shareholder on bare trust for the Holdco; (iii) a share sale and purchase agreement or minority sale letter between the Tevva Shareholder and Holdco setting out the terms of the Offersale and purchase of the Sale Shares and including warranties in respect of the Tevva Shareholder’s title to, and capacity to sell, the Company shall file Sale Shares with full title guarantee and free from any encumbrances and otherwise on the SEC same terms as section 4.1(a)-(f) of this Agreement; (iv) if requested by EXX, a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect voting power of attorney in relation to the Offer, 6 which shall contain Sale Shares in favour of the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange ActBuyer pending, and to expire upon, the Offer Documentsdue stamping of the relevant stock transfer forms and the entry of Holdco (or the Resulting Issuer) in to Tevva’s register of members as the holder of the Sale Shares; (v) if applicable, on an election pursuant to section 431 of the date first publishedIncome Tax (Earnings & Pensions) Act 2003; (vi) if requested, sent or an indemnity to be given to Tevva and/or its directors for any lost share certificate(s) relating to the Company's stockholdersSale Shares; and (vii) any other agreement, shall not contain any untrue statement deed, release, waiver (including waiver of a material fact pre-emption rights), consent or omit to state any material fact other document which is reasonably required to be stated therein enable, implement or necessary in order to make register the statements therein, in light transfer of the circumstances under Sale Shares to Holdco or which they were made, not misleading, except that no representation or warranty is made by preparatory to the Company with respect to written information supplied by or on behalf sale and purchase of the Investor for inclusion Sale Shares or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false Arrangement or misleading in any material respect, and the Company further agrees to take all steps otherwise necessary to cause implement of facilitate the Schedule 13E-4 as so corrected to be filed with the Commission sale and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent purchase of the Investor. The Company agrees to provide Sale Shares or the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such comments.Arrangement; (d) Each Share purchased not in any circumstances whilst the Offer shall automatically Arrangement Agreement is in force withdraw the Tevva Shareholder’s acceptance of the Offer; (e) promptly complete, execute and deliver all such other documents and do all such other things as may be cancelled reasonably necessary and retired reasonably requested of the Tevva Shareholder to give full effect to each of the Tevva Shareholder’s undertakings, agreements, warranties, representations appointments and shall cease to existconsents set out in this Agreement.

Appears in 1 contract

Samples: Voting Support and Lock Up Agreement (Electrameccanica Vehicles Corp.)

Offer. (a) As soon as practicable after No Shareholder shall dispose of shares of Stock owned by such Shareholder to any person or entity until such Shareholder (the date hereof"Offering Shareholder") shall first have offered such shares first to the Corporation and then to the Existing Shareholders and the other Shareholders listed on Schedule A (the Shareholders and the Existing Shareholders, collectively, the Company will amend its "Offeree Shareholders") by notice in writing (the "Offer Notice") and shall otherwise have complied with this Section 2. Any Offer Notice under this Agreement shall be given at the same time to Purchase dated February 19the Corporation and the Offeree Shareholders and shall specify (i) the person or entity to which the shares of Stock, 1999 or to provide which any interest in such shares, are proposed to be transferred (the "Third Party Offeror"), (ii) the price, other consideration and other material terms and conditions of the transaction that the Offer, as amended, will Offering Shareholder proposes to undertake with the Third Party Offeror and (iii) the number of shares proposed to be at a price per Share equal included in or affected by the disposition to the Offer Price (lessThird Party Offeror. First the Corporation and then, in if the case of Shares issuable upon Corporation does not exercise its right to purchase the conditional exercise of Company Stock Optionsoffered Stock, the exercise price thereofOfferee Shareholders shall have the right to acquire all (but not less than all) and to disclose of the Stock or the interests therein offered by the Offering Shareholder on the terms and conditions set forth in this Agreementthe Offer Notice. No condition Such right shall be exercisable by the Corporation within forty-five (45) days after the Offer Notice is given by the Offering Shareholder and by the Offeree Shareholders within the period from fifty (50) to ninety (90) days after the Offer Notice is given to such Shareholders. Such right shall be deemed to be exercised when written notice of such exercise is given by the Corporation or an Offeree Shareholder to the offer (Offering Shareholder within the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waivedapplicable period specified above. (ba) Subject If there is more than one Offeree Shareholder, then each such Shareholder shall have the right and option to acquire a pro rata portion of the Stock offered by the Offering Shareholder (such pro rata portion, as defined in Section 2.2(c), a "Pro Rata Portion"), in the manner provided in this Section 2. If any of such Offeree Shareholders fails to exercise its right to acquire all of the Stock that such Shareholder is entitled to acquire under this Section 2 or gives notice to the terms Offering Shareholder that it will not exercise such right, then the other Offeree Shareholders shall have the right and conditions option to acquire Pro Rata Portions of such Stock, in the Offer and manner provided in this Section 2.32. If only one Offeree Shareholder exercises its option to acquire Stock subject to this Section 2, then such Shareholder shall have the Company shall accept for payment, right to acquire all (and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn all) of such Stock offered by the Offering Shareholder, in accordance with this Section 2. To effectuate the offer of Stock to Offeree Shareholders pursuant to this Section 2.2, if any Offeree Shareholder fails to exercise its option to acquire such Stock within the Offer that the Company becomes obligated fifty to accept for payment, and pay for, pursuant ninety day exercise period provided in Section 2.2(a) or gives notice to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except Offering Shareholder that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such comments. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.it

Appears in 1 contract

Samples: Shareholders Agreement (Long Distance International Inc)

Offer. Provided that this Agreement has not been terminated pursuant to Section 9.1 hereof, as promptly as reasonably practicable, but in any event within ten (a10) As soon "business days" (as practicable after defined in Rule 14d-1(g) under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act")) following the date hereof, the Company Purchaser will, and the Parent will amend its Offer cause the Purchaser to, commence (within the meaning of Rule 14d-2 under the Exchange Act) a tender offer (as it may be amended from time to Purchase dated February 19time as permitted by this Agreement, 1999 the "Offer") to provide that purchase all of the Razorfish Shares at a price of U.S. $1.70 per share, in cash (such price, or the highest price per Razorfish Share as may be paid in the Offer, being referred to herein as amended, will be at a price per Share equal the "Offer Price"). The obligation of the Purchaser to accept for payment and pay for Razorfish Shares tendered pursuant to the Offer Price (less, in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition will be subject only to the offer following conditions: (the "Offer Conditions"i) may that there will be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (b) Subject to the terms and conditions of the Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant prior to the final expiration of the Offer that number of Razorfish Shares, together with Razorfish Shares then owned by the Company becomes obligated Parent, the Purchaser and their respective Subsidiaries that represents at least a majority of Razorfish Shares outstanding on a Fully Diluted Basis (as defined below) (the "Minimum Condition") and (ii) the satisfaction or waiver by the Purchaser as permitted hereunder of the other conditions set forth in Annex I hereto. For purposes of this Agreement, "Fully Diluted Basis" means the number of Razorfish Shares issued and outstanding at the time of determination, after taking into account all Razorfish Shares issuable upon conversion or exercise of outstanding options, warrants or rights to accept purchase Razorfish Shares. The Offer will be made by means of an offer to purchase (the "Offer to Purchase") and a related letter of transmittal, each in form reasonably satisfactory to Razorfish, containing the terms set forth in this Agreement and the conditions set forth in Annex I. Without limiting the foregoing, effective upon the first acceptance for payment, and pay for, payment of Razorfish Shares by the Purchaser pursuant to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment of the Offer, the Company shall file holder of such Razorfish Shares will sell and assign to the Purchaser all right, title and interest in and to all of Razorfish Shares tendered (including, but not limited to, such holder's right to any and all dividends and distributions with a record date before, and a payment date after, the SEC a Tender Offer Statement on Schedule 13E-4 scheduled or extended expiration date) (such time being referred to as the "Schedule 13E-4") -------------- with respect to Consummation of the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such comments"). (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Acquisition Agreement (Razorfish Inc)

Offer. (a) As soon as practicable after No Shareholder shall dispose of shares of Stock owned by such Shareholder to any person or entity until such Shareholder (the date hereof"Offering Shareholder") shall first have offered such shares to the Corporation and the other Shareholders (the "Offeree Shareholders") by notice in writing (the "Offer Notice") and shall otherwise have complied with this Section 2. Any Offer Notice under this Agreement shall be given at the same time to the Corporation and the Offeree Shareholders and shall specify (i) the person or entity to which the shares of Stock, or to which any Interest in such shares, are proposed to be transferred (the "Third Party Offeror"), (ii) the price, other consideration and other material terms and conditions of the transaction that the offering Shareholder proposes to undertake with the Third Party Offeror and (iii) the number of shares proposed to be included in or affected by the disposition to the Third Party Offeror. First the Corporation and then, if the Corporation does not exercise its right to purchase the offered Stock, the Company will amend its Offer Offeree Shareholders shall have the right to Purchase dated February 19, 1999 to provide that acquire all (but not less than all) of the Offer, as amended, will be at a price per Share equal to Stock or the Offer Price (less, in interests therein offered by the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose Offering Shareholder on the terms and conditions set forth in this Agreementthe Offer Notice. No condition Such right shall be exercisable by the Corporation within forty-five (45) days after the Offer Notice is given by the Offering Shareholder and by the Offeree Shareholders within the period from fifty (50) to ninety (90) days after the Offer Notice in given to such Shareholders. Such right shall be deemed to be exercised when written notice of such exercise is given by the Corporation or an Offeree Shareholder to the offer (Offering Shareholder within the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waivedapplicable period specified above. (b) Subject If there is more than one Offeree Shareholder, then each such Shareholder shall have the right and option to acquire a pro rata portion of the Stock offered by the Offering Shareholder (such pro rata portion, as defined in Section 2.2(c), a "Pro Rata Portion"), in the manner provided in this Section 2. If any of such Offeree Shareholders fails to exercise its right to acquire all of the Stock that such Shareholder is entitled to acquire under this Section 2 or gives notice to the terms and conditions of Offering Shareholder that it will not exercise such right, then the Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information other Offeree Shareholders shall have become false or misleading in any material respect, the right and the Company further agrees option to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such comments. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.acquire Pro

Appears in 1 contract

Samples: Shareholder Agreement (Long Distance International Inc)

Offer. (a) As soon as practicable after the date hereof, the Company will amend its Offer to Purchase dated February 19, 1999 to provide that the Offer, as amended, will be at a price per Share equal to the Offer Price (less, in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer (the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (b) Subject to the terms and conditions of this Agreement, as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the public announcement of the execution of this Agreement, Parent or Merger Sub will commence the Offer. Parent or Merger Sub will conduct the Offer and this Section 2.3in compliance in all material respects with applicable laws, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million for Shares validly tendered and not withdrawn pursuant and consummate the Offer, all on the terms and subject to the conditions thereof, as soon as legally permissible. The initial expiration date of the Offer will be the 20th business day following the Offer. Subject to the conditions set forth in Exhibit 1.1, Parent or Merger Sub, as the case may be, will pay, as promptly as reasonably practicable after the expiration of the Offer for all Shares duly tendered and not withdrawn. Parent expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made, without the consent of the Company, which decreases the price per Share or form of consideration payable in the Offer, reduces the maximum number of Shares to be purchased in the Offer, waives or reduces below a majority of the outstanding Shares on a fully diluted basis (as set forth in Exhibit 1.1) the Minimum Condition, imposes conditions to the Offer that other than those set forth in Exhibit 1.1 or extends the Company becomes obligated Offer. Notwithstanding the foregoing, Parent may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date if, at the scheduled expiration date of the Offer, any of the conditions to Parent's obligation to accept for payment, and to pay for, the Shares, shall not be satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, or interpretation of the Securities and Exchange Commission (the "SEC") or the staff thereof, applicable to the Offer or (iii) extend the Offer for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if as of such date all of the conditions to Parent's obligations to accept for payment, and to pay for, the Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn, or purchased pursuant to the Stockholder Agreements, pursuant to the Offer as soon as practicable after the expiration Offer, is less than 90% of the Offeroutstanding Shares on a fully diluted basis (as set forth in Exhibit 1.1). (cb) On the date of amendment commencement of the Offer, the Company shall Parent and Merger Sub will file with the SEC SEC, a Tender Offer Statement on Schedule 13E-4 14D-1 (the "Schedule 13E-414D-1") -------------- with respect to the Offer, 6 which shall contain an offer to purchase, a related letter of transmittal and the other documents used in the Offer (the "Offer Documents"). Parent and Merger Sub agree that the Schedule 14D-1, including the Offer Documents. The Offer Documents , shall comply as to form in all material respects with the requirements of the Securities Exchange ActAct of 1934, as amended, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such comments. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.rules and

Appears in 1 contract

Samples: Merger Agreement (Fil Acquisition Corp)

Offer. (a) As soon Parent shall cause Newco, as promptly as reasonably practicable ----- after the date hereof, but in no event later than five (5) U.S. Business Days following the Company will amend its public announcement of the terms of this Agreement, to commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to Purchase dated February 19, 1999 to provide that purchase any and all of the Offer, as amended, will be issued and outstanding shares (the "Shares") of Company ------ Common Stock (other than those Shares currently owned by Newco or Parent) at a price of $5.50 per Share equal Share, net to the seller in cash, without interest, (or at such higher price as Newco elects to offer) (the "Offer Price (lessPrice"), in but subject to ----------- any withholding required by law, provided, that Newco shall not be required to -------- commence the case Offer if an event shall have occurred that, had the Offer already been commenced, would give rise to a right to terminate the Offer under any of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this AgreementAnnex II hereto. No condition The Offer shall have a scheduled expiration date not less than twenty (20) U.S. Business Days following the commencement thereof. The obligation of Parent and Newco to accept and pay for Shares tendered shall be subject to the offer (condition that there shall be validly tendered prior to the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer and not withdrawn a number of Shares which, when added to the Shares owned by Parent, represent at least 90% of the Shares issued and outstanding on a fully diluted basis (the "Minimum ------- Condition") and to the other conditions set forth in Annex II. Parent and Newco --------- expressly reserve the right to waive the Minimum Condition or any of the Offer Conditions shall not be satisfied or waived, until such time as such other conditions are satisfied or waived. (b) Subject to the terms and conditions of Offer, to increase the price per Share payable in the Offer and this Section 2.3, to make any other change or changes in the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment terms or conditions of the Offer, including without limitation extending the Company shall file with expiration date, provided, that no -------- change may be made that changes the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required consideration to be stated therein paid or necessary in order to make decreases the statements therein, in light price per Share or the number of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference Shares sought in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect which imposes conditions to the Offer Documents promptly after the receipt of such comments and the Company will provide in addition to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsthose set forth in Annex II. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Merger Agreement (Steag Electronic Systems GMBH)

Offer. Provided that this Agreement shall not have been terminated in accordance with Section 7.1 hereof and none of the events set forth in paragraphs (a) As soon through (k) of Annex A hereto shall have occurred or be existing (and shall not have been waived by the Purchaser), the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer as promptly as reasonably practicable after the date hereof, . The obligation of the Company will amend its Offer Purchaser to Purchase dated February 19, 1999 to provide that the Offer, as amended, will be at a price per Share equal accept for payment and pay for Shares tendered pursuant to the Offer Price (less, in shall be subject to the case satisfaction of the condition that there be validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares issuable upon which represents at least 50.1% of the conditional exercise of Company Stock Options, then outstanding Shares on a fully diluted basis (the exercise price thereof"Minimum Condition") and to disclose the terms and satisfaction or waiver by the Purchaser of the other conditions set forth in this AgreementAnnex A hereto. No condition The Company agrees that no Shares held by the Company or any of its Subsidiaries (as defined in Section 8.11 hereof) will be tendered to the offer Purchaser pursuant to the Offer. The Purchaser expressly reserves the right to waive any of such conditions (other than the "Minimum Condition), to increase the price per Share payable in the Offer Conditions") and to make any other changes in the terms of the Offer; provided, however, that no change may be waived in whole or in part, and the Offer ---------------- shall not be terminated, made without the prior written consent of the Investor and Company which decreases the Company price per Share payable in their sole discretion. Notwithstanding the foregoing but subject Offer, reduces the maximum number of Shares to Section 8.1(b)be purchased in the Offer, changes the Company shallform of consideration to be paid in the Offer, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled modifies or any extended expiration date of the Offer amends any of the conditions set forth in Annex A hereto, imposes conditions to the Offer Conditions shall not be satisfied in addition to the conditions set forth in Annex A hereto, waives the Minimum Condition or waived, until such time as such conditions are satisfied or waived. (b) Subject to makes other changes in the terms and conditions of the Offer that are in any manner adverse to the holders of Shares, requires the consent of the Lenders, or except as provided below, extends the Offer. Subject to the terms of the Offer and this Section 2.3Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, the Company Purchaser shall accept for payment, payment and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable law. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which shall be 12:00 noon eastern time on the twenty-first (21st) business day following the date of commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to the Purchaser's obligation to accept for payment and to pay for the Shares shall not be satisfied or, to the extent permitted by this Agreement, waived or (ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. Any extension of the Offer pursuant to clause (i) of the preceding sentence of this Section 1.1 shall not exceed the lesser of ten business days or such fewer number of days that the Company Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied; provided further, however, that if all of the conditions set forth in Annex A are satisfied at the end of the initial Offer period, except the Minimum Condition, the Purchaser shall extend the Offer for at least three business days. The Purchaser may, in its sole discretion, provide a "subsequent offering period" (as contemplated by Rule 14d-11 under the Exchange Act) of not less than three business days nor more than twenty business days following its acceptance for payment of Shares in the Offer. On or prior to the dates that the Purchaser becomes obligated to accept for payment, payment and pay for, for Shares pursuant to the Offer, Parent shall provide or cause to be provided to the Purchaser the funds necessary to pay for all Shares that the Purchaser becomes so obligated to accept for payment and pay for pursuant to the Offer. The Offer as soon as practicable after Price shall, subject to any required withholding of Taxes, be net to the expiration selling holder of shares in cash, upon the terms and subject to the conditions of the Offer. (c) On the date of amendment of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such comments. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Merger Agreement (Aeroflex Inc)

Offer. (a) As soon Provided that this Agreement shall not have been terminated in accordance with Section 7.1 hereof and none of the events set forth in paragraphs (a) through (k) of Annex A hereto shall have occurred or be existing (and shall not have been waived by the Purchaser), the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer as promptly as reasonably practicable after the date hereof, . The obligation of the Company will amend its Offer Purchaser to Purchase dated February 19, 1999 to provide that the Offer, as amended, will be at a price per Share equal accept for payment and pay for Shares tendered pursuant to the Offer Price (less, in shall be subject to the case satisfaction of the condition that there be validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares issuable upon which represents at least 50.1% of the conditional exercise of Company Stock Options, then outstanding Shares on a fully diluted basis (the exercise price thereof"Minimum Condition") and to disclose the terms and satisfaction or waiver by the Purchaser of the other conditions set forth in this AgreementAnnex A hereto. No condition The Company agrees that no Shares held by the Company or any of its Subsidiaries (as defined in Section 8.11 hereof) will be tendered to the offer Purchaser pursuant to the Offer. The Purchaser expressly reserves the right to waive any of such conditions (other than the "Minimum Condition), to increase the price per Share payable in the Offer Conditions") and to make any other changes in the terms of the Offer; provided, however, that no change may be waived in whole or in part, and the Offer ---------------- shall not be terminated, made without the prior written consent of the Investor and Company which decreases the Company price per Share payable in their sole discretion. Notwithstanding the foregoing but subject Offer, reduces the maximum number of Shares to Section 8.1(b)be purchased in the Offer, changes the Company shallform of consideration to be paid in the Offer, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled modifies or any extended expiration date of the Offer amends any of the conditions set forth in Annex A hereto, imposes conditions to the Offer Conditions shall not be satisfied in addition to the conditions set forth in Annex A hereto, waives the Minimum Condition or waived, until such time as such conditions are satisfied or waived. (b) Subject to makes other changes in the terms and conditions of the Offer that are in any manner adverse to the holders of Shares, requires the consent of the Lenders, or except as provided below, extends the Offer. Subject to the terms of the Offer and this Section 2.3Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, the Company Purchaser shall accept for payment, payment and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable law. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which shall be 12:00 noon eastern time on the twenty-first (21st) business day following the date of commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to the Purchaser's obligation to accept for payment and to pay for the Shares shall not be satisfied or, to the extent permitted by this Agreement, waived or (ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. Any extension of the Offer pursuant to clause (i) of the preceding sentence of this Section 1.1 shall not exceed the lesser of ten business days or such fewer number of days that the Company Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied; provided further, however, that if all of the conditions set forth in Annex A are satisfied at the end of the initial Offer period, except the Minimum Condition, the Purchaser shall extend the Offer for at least three business days. The Purchaser may, in its sole discretion, provide a "subsequent offering period" (as contemplated by Rule 14d-11 under the Exchange Act) of not less than three business days nor more than twenty business days following its acceptance for payment of Shares in the Offer. On or prior to the dates that the Purchaser becomes obligated to accept for payment, payment and pay for, for Shares pursuant to the Offer, Parent shall provide or cause to be provided to the Purchaser the funds necessary to pay for all Shares that the Purchaser becomes so obligated to accept for payment and pay for pursuant to the Offer. The Offer as soon as practicable after Price shall, subject to any required withholding of Taxes, be net to the expiration selling holder of shares in cash, upon the terms and subject to the conditions of the Offer. (cb) On the date of amendment commencement of the Offer, the Company Purchaser shall file with the SEC a Tender Offer Statement on Schedule 13E-4 TO (together with all amendments and supplements thereto, the "Schedule 13E-4TO") -------------- with respect to the Offer, 6 which . The Schedule TO shall contain or incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments and supplements thereto, the "Offer Documents"). Parent and the Purchaser shall cause the Offer DocumentsDocuments to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities laws. The Offer Documents shall comply as to form in all material respects with Parent and the Exchange ActPurchaser, on the one hand, and the Offer DocumentsCompany, on the date first publishedother hand, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees will promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to Purchaser will cause the Schedule 13E-4 Offer Documents as so corrected to be filed with the Commission SEC and the other Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Offer Documents Company and its counsel shall be in form given a reasonable opportunity to review and substance reasonably satisfactory to comment upon the Investor Schedule TO before it is filed with the SEC. In addition, Parent and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees Purchaser agree to provide the Investor Company and its counsel with any comments comments, whether written or oral, that Parent or the Company Purchaser or its their counsel may receive from time to time from the Commission SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and to consult with the Company will provide to the Investor and its counsel sufficient time and the opportunity prior to comment on any written or oral response responding to any such comments. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Merger Agreement (Aeroflex Inc)

Offer. (a) As soon Provided that this Agreement shall not have been terminated in accordance with SECTION 8.1 hereof and that none of the events or circumstances set forth in ANNEX I shall have occurred or exist, Parent shall cause Sub, as promptly as reasonably practicable after the date hereof, but in any event no later than five business days following the Company will amend its Offer date hereof, to Purchase dated February 19, 1999 to provide that commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer, as amended, will be at a price of $0.52 per Share equal share, net to the seller in cash, without interest (or at such higher price as Sub elects to offer) (the "OFFER PRICE"), but subject to any withholding required by law. The obligation of Parent and Sub to accept and pay for Shares tendered shall be subject only to (i) the condition that there shall be validly tendered prior to the expiration date of the Offer Price (less, in the case and not withdrawn a number of Shares issuable upon which, when added to the conditional exercise shares of Company Common Stock Optionsowned by Parent, represent at least 90% of the exercise price thereofShares issued and outstanding on a fully diluted basis (the "MINIMUM CONDITION") and (ii) to disclose the terms and other conditions set forth in this Agreement. No condition to the offer ANNEX I (collectively, the "Offer ConditionsOFFER CONDITIONS") may be waived in whole or in part, ). Parent and Sub expressly reserve the right to waive any of the Offer ---------------- shall Conditions (except that Parent and Sub may not be terminated, without waive the prior written Minimum Condition except with the consent of the Investor Company or as and to the Company extent provided in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(bthis Agreement), to increase the Company shallprice per share payable in the Offer and to make any other change or changes in the terms or conditions of the Offer, unless otherwise requested by -------------- including, without limitation, extending the Investorexpiration date, and mayexcept that, without the consent of the InvestorCompany, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions Parent and Sub shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (bi) Subject to reduce the terms and conditions number of the Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect subject to the Offer, 6 which shall contain (ii) reduce the Offer Documents. The Offer Documents shall comply as Price, (iii) impose any other conditions to form in all material respects with the Exchange Act, and the Offer Documents, on other than the date first published, sent Offer Conditions or given modify the Offer Conditions (other than to waive any Offer Conditions to the Company's stockholdersextent permitted by this Agreement), shall not contain any untrue statement (iv) except as provided in SECTION 1.1(b), extend the Offer, (v) change the form of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference consideration payable in the Offer Documents. The Investor and the Company each agrees promptly to correct or (vi) amend any written information provided by it for use in other term of the Offer Documents if and in a manner adverse to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsCommon Stock. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Merger Agreement (Rocket Software Inc)

Offer. (a) As soon as practicable Subject to the terms and conditions herein, the Offeror shall make an offer to purchase all of the outstanding Company Shares (the “Offer”) for a purchase price (the “Purchase Price”) of 0.073 of a Xxxxxxx Share, provided that no fractional Xxxxxxx Shares shall be issued to any Shareholder. The Offer shall be subject to the terms and conditions set out herein and in Schedule A and the term “Offer” shall include any amendments to, or extension of, such Offer, made in accordance with this Agreement. (b) If on or after the date hereof, Company declares, sets aside or pays any dividend or other distribution to the Shareholders of record as of a time prior to the Expiry Time, the Offeror shall make such adjustments to the Purchase Price as it determines acting in good faith to be necessary to restore the original intention of the parties in the circumstances. For greater certainty, if the Company will amend takes any of the actions referred to above, the aggregate consideration to be paid by the Offeror shall be decreased by an equivalent amount. Notwithstanding the foregoing, nothing in this Section 2.1(b) shall restrict the ability of the Offeror to terminate this Agreement pursuant to Section 8.1(g)(ii) in the event the condition of the Offer set out in Section 2.1(j)(iii) of this Agreement or paragraph (h) of Schedule A shall not have been met; (c) The Offeror shall prepare the Offer and accompanying take-over bid circular (together, the “Offer Circular”), related letter(s) of transmittal, notice(s) of guaranteed delivery and other ancillary offer documents (collectively, the “Offer Documents”) in accordance with applicable Laws (including in the French language if required by applicable Laws). The Offeror shall not be required to make the Offer in any jurisdiction where it would be illegal to do so. (d) The Offeror shall use its reasonable best efforts to effect the listing of the Xxxxxxx Shares to be issued pursuant to the Offer on the TSX and the NYSE MKT at the time of issue of such shares. (e) The Offeror shall mail the Offer Documents in accordance with applicable Laws to Purchase dated February 19each registered Shareholder and to each other person required by applicable Law as soon as reasonably practicable and, 1999 in any event, not later than 11:59 p.m. (Toronto time) on December 15, 2012 (such time on such date, subject to extension in accordance with the following sentences, being referred to herein as the “Latest Mailing Time”). If the mailing of the Offer Documents is delayed by reason of (i) an injunction or order made by a Regulatory Authority or (ii) the failure of the Company to provide the Offeror with the Directors’ Circular in accordance with Section 2.2(b) or the shareholders lists referred to in Section 2.2(d), then provided that such injunction or order is being contested or appealed, if applicable, the Latest Mailing Time shall be extended for a period ending on the fifth Business Day following the date on which such injunction or order ceases to be in effect or such waiver, consent, approval, Directors’ Circular or shareholders list is obtained, as applicable. If the Latest Mailing Time occurs during a Match Period, the Latest Mailing Time shall be extended to 11:59 p.m. (Toronto time) on the second Business Day immediately following the last day of the Match Period. The Offeror shall file the Offer Circular (and such other Offer Documents as may be required by applicable law) with applicable Governmental Authorities within the time and in the manner required by applicable Law. (f) Prior to the printing of the Offer Documents and during the course of their preparation, the Offeror shall provide the Company and its counsel with an opportunity to review and comment on them, recognizing that whether or not such comments are appropriate will be determined by the Offeror, acting reasonably. The Company shall provide to the Offeror for inclusion in the Offer Circular such information regarding the Company as is required by applicable Law to be included in the Offer Circular. The Company represents, warrants and covenants that any information it provides to the Offeror for inclusion in the Offer Circular will be accurate and complete in all material respects as of the relevant date of such information and will not contain any Misrepresentation. (g) The Offer shall be made in accordance with applicable Laws and shall expire not earlier than 12:00 noon (Vancouver time) on the 36th day after the date that the Offer is first commenced within the meaning of the Securities Act (such expiry time on such date, as the same may be extended in accordance with the following sentence, is referred to herein as the “Expiry Time”). The Offeror may extend the Expiry Time (i) in order to contest or appeal any injunction or order made by a Regulatory Authority against the take-up and/or payment for the Company Shares tendered to the Offer or to seek any regulatory waiver, consent or approval which is necessary to permit the Offeror to take up and pay for the Company Shares tendered to the Offer, as amendedby an aggregate maximum of 60 days, will be at a price per Share equal (ii) after having taken up all of the Company Shares tendered to the Offer Price (lessOffer, in the case of order to permit other Shareholders to tender their Company Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer (the "Offer Conditions") may be waived in whole Offer. The Offeror shall not terminate or in part, and withdraw the Offer ---------------- shall not be terminated, prior to any scheduled Expiry Time without the prior written consent of the Investor and the Company Company, except if this Agreement is terminated in their accordance with its terms. (h) The Offeror may, in its sole discretion. Notwithstanding , amend, modify or waive the foregoing but subject Minimum Tender Condition or any other term or condition of the Offer, provided that the Offeror shall not, without the prior consent of the Company: (i) increase the Minimum Tender Condition; (ii) impose additional conditions to the Offer; (iii) decrease the consideration per Company Share (other than in accordance with Section 8.1(b2.1(b)); (iv) decrease the number of Company Shares in respect of which the Offer is made; (v) change the amount or form of consideration payable under the Offer (other than in accordance with Section 2.1(b)) and/or to increase the total consideration per Company Share and/or add additional consideration; or (vi) otherwise vary the Offer or any terms or conditions thereof (other than a waiver of a condition), in any case in a manner that is materially adverse to the Shareholders. (i) The Offeror agrees that provided all of the conditions to the Offer set out in Schedule A hereto shall have been satisfied or waived by the Offeror (where permitted hereby), the Company shall, unless otherwise requested by -------------- the Investor, Offeror shall take up and may, without the consent pay for all of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (b) Subject to the terms and conditions of the Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to under the Offer as soon as reasonably practicable after and in any event no later than three Business Days following the expiration time at which it becomes entitled to take up such Company Shares under the Offer pursuant to applicable Laws. (j) The obligation of the Offeror to make the Offer and to mail the Offer Documents is conditional on the prior satisfaction of the following conditions, all of which conditions are included for the sole benefit of the Offeror and any or all of which may be waived by the Offeror in whole or in part in its sole discretion (other than the condition set out in Section 2.1(j)(ix), which may be waived only with the consent of the Company) without prejudice to any other right it may have under this Agreement and which conditions shall be deemed to have been waived by the making of the Offer.: (ci) On the date of amendment this Agreement shall not have been terminated pursuant to Section 8.1 and none of the Offer, Lock-Up Agreements shall have been terminated; (ii) each of the Company Locked-Up Shareholders shall file have entered into a Lock-up Agreement with the SEC Offeror in a Tender form that is satisfactory to the Offeror in its sole discretion pursuant to which each of the Locked-Up Shareholders shall have agreed to deposit under the Offer Statement all Company Shares which such person beneficially owns, directly or indirectly, or over which such person exercises control or direction; (iii) no circumstance, fact, change, event or occurrence, caused by a person other than the Offeror shall have occurred or come into existence that, in the opinion of the Offeror, would render it impossible for one or more of the conditions set out on Schedule 13E-4 A to be satisfied; (iv) the "Schedule 13E-4"Board shall not have withdrawn the Board Approval or changed, modified or qualified the Board Approval in a manner that has substantially the same effect or taken any other action or made any other public statement in connection with the Offer inconsistent with the Board Approval; (v) -------------- with respect the Board shall have caused to be prepared and by a unanimous vote approved in final form, printed for distribution to Shareholders and delivered to the Offer, 6 which shall contain depositary under the Offer Documents. The Offer Documents shall comply as to form in all material respects for mailing with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if sufficient copies of, the Directors’ Circular in accordance with Section 2.2; (vi) the Offeror and each of the Optionholders shall have agreed that the Options shall be terminated and Replacement Options issued, as contemplated by Section 2.4; (vii) the Offeror and each of the holders of the Warrants shall have agreed that the Warrants shall be terminated and Replacement Warrants issued, as contemplated by Section 2.5; (viii) the Offeror shall have received all waivers, consents, rulings or orders necessary for the making of the Offer or to mail to the extent that such information Shareholders the Offer Documents from all applicable Regulatory Authorities including without limitation an order from the relevant Canadian securities regulatory authorities permitting the Offeror to enter into “collateral agreements” so as to effect the termination of the Options and Warrants and the issuance of Replacement Options and Replacement Warrants as contemplated by Sections 2.4 and 2.5, respectively; (ix) no cease trade order, injunction or other prohibition at law shall exist against the Offeror making the Offer or taking up or paying for Company Shares deposited under the Offer; (x) no event or condition shall have become false or misleading occurred since July 31, 2012 that constitutes a Material Adverse Effect in any material respect, and respect of the Company further agrees to take all steps necessary to cause Company; and (xi) the Schedule 13E-4 as so corrected Xxxxxxx Shares to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect issued pursuant to the Offer Documents promptly after shall be registered under the receipt of MJDS on Form F-8 (or such comments and other Form available under the Company will provide MJDS as may be agreed to by the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsOfferor). (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Acquisition Agreement (Denison Mines Corp.)

Offer. (a) As soon as practicable after The terms (including the date hereof, price) and conditions of the Increased Offer shall be agreed between the Company will amend its Offer to Purchase dated February 19, 1999 to provide that and the Offer, as amended, will be at a price per Share equal Original Lenders prior to the Increased Offer Price Announcement Date. (less, b) The Company undertakes to carry out the Original Offer in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose accordance with the terms and conditions set forth in this Agreement. No condition to agreed with the offer (the "Offer Conditions") may be waived in whole or in part, Lenders and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and maynot, without the consent of the InvestorMajority Lenders, extend make, or agree to, any waiver or change of any condition precedent or term (including the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date price) of the Original Offer or take or permit to be taken any step or make any public statement as a result of which the terms (including the price) and/or conditions of the Original Offer Conditions are, or may be required to be, waived or changed, provided that no such consent shall not be satisfied required in relation to any waiver or waived, until such time as such conditions are satisfied change of any term and/or condition of the Original Offer (i) relating to the duration of the Original Offer (when filed) and to any extension thereof or waived(ii) resulting from the withdrawal of the Original Offer decided by the Company. (bc) Subject The Company undertakes to file the terms and conditions of the Increased Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to note d'information relating thereto with the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer AMF as soon as practicable after and at the expiration latest 10 Business Days following the date of this Agreement, failing which the Commitments of the Lenders under this Agreement shall be automatically cancelled in accordance with provisions of Clause 8.4 (Mandatory Cancellation). (d) The Company may make an Additional Offer without the prior consent of the Majority Lenders as long as such Additional Offer is made on substantially the same terms and conditions as the Original Offer (save for such changes as are permitted without the prior Lenders' approval or as to which the Lenders have granted their consent pursuant to paragraph (b) above). (e) The Company shall keep the Agent informed at all times of all proposed modifications, of all modifications and of all material developments in relation to the Offer (including where available, the levels of acceptance) and provide promptly, such further information or document as any Finance Party (through the Agent) may reasonably request in relation to the Offer. (cf) On The Company shall conduct its business during the date of amendment whole duration of the OfferOriginal Offer in accordance with its strategy as publicly announced. In addition, during such period, the Company shall file not proceed with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement distribution of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor dividends for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsan amount greater than EUR 1,000,000,000. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Facility Agreement (Sanofi Synthelabo Sa)

Offer. From Closing until the earlier of (ax) As soon as practicable after the five-year anniversary of the Issue Date and (y) the date hereofon which the Holders no longer beneficially owns 50% or more of the number of Xxxxx Warrants issued on the Issue Date (or the respective Warrant Shares issued in connection with the exercise of the Xxxxx Warrants), the Company will amend shall not issue any Common Securities to any Person, unless the Company offers the right (the “Participation Right”) to each Holder to purchase its Offer to Purchase dated February 19, 1999 to provide that Participation Amount (as defined below) of such Common Securities at the Offer, as amended, will be at a same price per Share equal security (payable in cash) and otherwise upon the same terms and conditions as those offered to such Person in accordance with the procedures set forth in this Section 6.1; provided that Participation Rights shall not be applicable to the Offer Price issuance of Common Securities: (lessi) issued as consideration pursuant to bona fide acquisitions of securities or material assets or business of another Person, including any Subsidiary, division or business line thereof (in each case, other than any Affiliates of the Company), by the Company or any of its Subsidiaries, (ii) issued to directors, officers, employees or consultants pursuant to any Approved Stock Plan, (iii) pursuant to a stock split, stock dividend or similar transaction in which all holders of Common Stock (or Common Securities convertible for shares of Common Stock) are treated equally on a pro rata basis, and (iv) pursuant to the payment of paid in kind interest on convertible indebtedness incurred by the Company or any of its Subsidiaries, (v) pursuant to the conversion, exchange or exercise of a Common Security that is either (A) outstanding on the Issue Date in accordance with the terms in effect on the Issue Date, including the Warrants, or (B) outstanding after the Issue Date as long as, in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer clause (the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(bB), the Company shallHolders have had an opportunity to exercise their Participation Rights with respect to the underlying Common Security or such Common Security was issued pursuant to clause (i), unless otherwise requested by -------------- the Investor, (ii) or (iv) of this sentence and may, without the consent (vi) pursuant to an offering of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date type described in clause (i) of the Offer definition of “Public Sale” of Common Securities. In connection with any Public Sale of Common Securities by the Offer Conditions shall not be satisfied or waived, until such time as such conditions Company during any period when the Holders are satisfied or waived. (b) Subject entitled to the terms and conditions of the Offer and Participation Rights under this Section 2.36.1, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant use its reasonable best efforts to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form facilitate such Holders’ participation in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and such Public Sale to the extent that such information shall Holders would have become false or misleading had Participation Rights in any material respect, and such Public Sale but for the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders provision of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such comments. clause (dvi) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to existpreceding sentence.

Appears in 1 contract

Samples: Securities Purchase Agreement (Global Eagle Entertainment Inc.)

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Offer. Subject to execution of the Transaction Agreement on October 5, 2023 (a) As soon or such later date as practicable after the date hereof, the Company will amend its Offer to Purchase dated February 19, 1999 to provide that the Offer, as amended, will be at a price per Share equal to the Offer Price (less, in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer (the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(bPurchaser may agree), I irrevocably and unconditionally undertake, if the Company shall, unless otherwise requested Acquisition is implemented by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (b) Subject to the terms and conditions of the Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment way of the Offer, to the Purchaser that: (i) upon the Offer being made, I will be able to accept or, where applicable, procure the acceptance of the Offer in respect of the Shares and to transfer the Shares free from all liens, equities, charges, encumbrances, options, rights of pre-emption and any other third party rights and interests of any nature and together with all rights now or hereafter attaching or accruing to them, including voting rights and the right to receive and retain in full all dividends of any nature and other distributions (if any) hereafter declared, made or paid subject to the matters referred to in the Transaction Agreement,; (ii) I shall as soon as possible after the posting of the formal document containing the Offer (the “Offer Document”) but in any event before the latest time specified under the Offer Document (or, in respect of any shares allotted to me after the posting of the Offer Document, within ten business days of such allotment or acquisition or if earlier prior to the latest time specified under the Offer Document) duly accept or procure acceptance of the Offer in accordance with its terms in respect of the Shares and, in respect of any Shares held in certificated form, shall forward the relevant share certificate(s) to the Purchaser or its nominated representative (or a form of indemnity acceptable to the directors of the Company in respect of any lost certificate(s)) at the time of acceptance and, in respect of any Shares held in uncertificated form, shall file take any action which may be required by the Purchaser or its nominated representative; (iii) notwithstanding any terms of the Offer Document conferring rights of withdrawal on accepting shareholders, I shall not withdraw any acceptance of the Offer in respect of the Shares or any of them and shall procure that no rights to withdraw any acceptance in respect of such Shares are exercised; (iv) the Shares shall be acquired by the Purchaser free from all liens, equities, charges, encumbrances, options, rights of pre-emption and any other third party rights and interests of any nature and together with all rights now or hereafter attaching or accruing to them, including voting rights and the SEC a Tender Offer Statement on Schedule 13E-4 right to receive and retain in full all dividends of any nature and other distributions (the "Schedule 13E-4"if any) -------------- with respect hereafter declared, made or paid subject to the Offermatters referred to in the Transaction Agreement; and (v) I shall immediately notify you in writing of any change to or inaccuracy in any information supplied, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made given, by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsme under this undertaking. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Acquisition Agreement (Orchard Therapeutics PLC)

Offer. (a) As soon as practicable after I irrevocably and unconditionally undertake, if the date hereof, the Company will amend its Offer to Purchase dated February 19, 1999 to provide that the Offer, as amended, will be at a price per Share equal to the Offer Price (less, in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer (the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested Acquisition is implemented by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (b) Subject to the terms and conditions of the Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment way of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and Offeror that: (i) (to the extent I or my spouse hold Shares) upon the Offer being made, I will (and will use reasonable endeavours to procure that such information shall have become false my spouse will) be able to accept or, where applicable, procure the acceptance of the Offer in respect of the Shares and to transfer the Shares free from all liens, equities, charges, encumbrances, options, rights of pre-emption and any other third party rights and interests of any nature and together with all rights now or misleading in any material respecthereafter attaching or accruing to them, including voting rights and the Company further agrees right to take receive and retain in full all steps necessary to cause dividends of any nature and other distributions (if any) where any such distribution is declared, made or paid on or after the Schedule 13E-4 as so corrected to be filed with date on which the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, becomes unconditional in each case as and all respects; (ii) (to the extent required by applicable Federal securities laws. The I or my spouse hold Shares) I shall (and shall use reasonable endeavours to procure that my spouse shall) as soon as possible and in any event within ten days after the posting of the formal document containing the Offer Documents (the “Offer Document”) (or, in respect of any Shares allotted to me after the posting of the Offer Document, within ten days of such allotment) duly accept or procure acceptance of the Offer in accordance with its terms in respect of the Shares and, in respect of any Shares held in certificated form, shall forward the relevant share certificate(s) to the Offeror or its nominated representative (or a form of indemnity acceptable to the directors of the Company in respect of any lost certificate(s)) at the time of acceptance and, in respect of any Shares held in uncertificated form, shall procure that the CREST nominee is instructed to accept the Offer; (iii) (to the extent I or my spouse hold Shares) notwithstanding that the terms of the Offer Document will confer rights of withdrawal on accepting shareholders, I shall not (and shall use reasonable endeavours to procure that my spouse shall not) withdraw any acceptance of the Offer in respect of the Shares or any of them and shall procure that no rights to withdraw any acceptance in respect of such Shares are exercised; and (iv) (to the extent I or my spouse hold Shares) the Shares shall be in form acquired by the Offeror free from all liens, equities, charges, encumbrances, options, rights of pre-emption and substance reasonably satisfactory any other third party rights and interests of any nature and together with all rights now or hereafter attaching or accruing to the Investor them, including voting rights and the Company will not file right to receive and retain in full all dividends of any Offer Document with nature and other distributions (if any) where any such distribution is declared, made or paid on or after the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to date on which the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsbecomes unconditional in all respects. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Deed of Irrevocable Undertaking (Marsh & McLennan Companies, Inc.)

Offer. (a) As soon as practicable after The terms (including the date hereof, price) and conditions of the Original Offer shall be agreed between the Company will amend its Offer to Purchase dated February 19, 1999 to provide that and the Offer, as amended, will be at a price per Share equal Lenders prior to the Announcement Date. (b) The Company undertakes to carry out the Original Offer Price (less, in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose accordance with the terms and conditions set forth in this Agreement. No condition to agreed with the offer (the "Offer Conditions") may be waived in whole or in part, Lenders and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and maynot, without the consent of the InvestorMajority Lenders, extend make, or agree to, any waiver or change of any condition precedent or term (including the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date price) of the Original Offer or take or permit to be taken any step or make any public statement as a result of which the terms (including the price) and/or conditions of the Original Offer Conditions are, or may be required to be, waived or changed, provided that no such consent shall not be satisfied required in relation to any waiver or waived, until such time as such conditions are satisfied change of any term and/or condition of the Original Offer (i) relating to the duration of the Original Offer (when filed) and to any extension thereof or waived(ii) resulting from the withdrawal of the Original Offer decided by the Company. (bc) Subject The Company undertakes to file the terms and conditions of the Original Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to note d'information relating thereto with the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer AMF as soon as practicable after and at the expiration latest 10 Business Days following the date of this Agreement, failing which the Commitments of the Lenders under this Agreement shall be automatically cancelled in accordance with provisions of Clause 8.4 (Mandatory Cancellation). (d) The Company may make an Additional Offer without the prior consent of the Majority Lenders as long as such Additional Offer is made on substantially the same terms and conditions as the Original Offer (save for such changes as are permitted without the prior Lenders' approval or as to which the Lenders have granted their consent pursuant to paragraph (b) above). (e) The Company shall keep the Agent informed at all times of all proposed modifications, of all modifications and of all material developments in relation to the Offer (including where available, the levels of acceptance) and provide promptly, such further information or document as any Finance Party (through the Agent) may reasonably request in relation to the Offer. (cf) On The Company shall conduct its business during the date of amendment whole duration of the OfferOriginal Offer in accordance with its strategy as publicly announced. In addition, during such period, the Company shall file not proceed with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement distribution of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor dividends for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsan amount greater than EUR 1,000,000,000. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Facility Agreement (Sanofi Synthelabo Sa)

Offer. From Closing until the earlier of (ax) As soon as practicable after the five-year anniversary of the Issue Date and (y) the date hereofon which the Holders no longer beneficially owns 50% or more of the number of Xxxxx Warrants issued on the Issue Date (or the respective Warrant Shares issued in connection with the exercise of the Xxxxx Warrants), the Company will amend shall not issue any Common Securities to any Person, unless the Company offers the right (the “Participation Right”) to each Holder to purchase its Offer to Purchase dated February 19, 1999 to provide that Participation Amount (as defined below) of such Common Securities at the Offer, as amended, will be at a same price per Share equal security (payable in cash) and otherwise upon the same terms and conditions as those offered to such Person in accordance with the procedures set forth in this Section 6.1; provided that Participation Rights shall not be applicable to the Offer Price issuance of Common Securities: (lessi) issued as consideration pursuant to bona fide acquisitions of securities or material assets or business of another Person, including any Subsidiary, division or business line thereof (in each case, other than any Affiliates of the Company), by the Company or any of its Subsidiaries, (ii) issued to directors, officers, employees or consultants pursuant to any Approved Stock Plan, (iii) pursuant to a stock split, stock dividend or similar transaction in which all holders of Common Stock (or Common Securities convertible for shares of Common Stock) are treated equally on a pro rata basis, and (iv) pursuant to the payment of paid in kind interest on convertible indebtedness incurred by the Company or any of its Subsidiaries, (v) pursuant to the conversion, exchange or exercise of a Common Security that is either (A) outstanding on the Issue Date in accordance with the terms in effect on the Issue Date, including the Warrants, or (B) outstanding after the Issue Date as long as, in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer clause (the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(bB), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (b) Subject Holders have had an opportunity to the terms and conditions of the Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- exercise their Participation Rights with respect to the Offerunderlying Common Security or such Common Security was issued pursuant to clause (i), 6 which shall contain the Offer Documents. The Offer Documents shall comply as (ii) or (iv) of this sentence and (vi) pursuant to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light an offering of the circumstances under which they were made, not misleading, except that no representation or warranty is made type described in clause (i) of the definition of “Public Sale” of Common Securities. In connection with any Public Sale of Common Securities by the Company with respect during any period when the Holders are entitled to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such comments. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.Participation Rights under this

Appears in 1 contract

Samples: Warrantholders Agreement (Global Eagle Entertainment Inc.)

Offer. Not fewer than fifteen (a15) As soon as practicable after business days ----- prior to the date hereofconsummation of the Issuance, a notice (the "Preemption ---------- Notice") shall be furnished by the Company to each holder of Mezzanine ------ Securities (the "Preemptive Purchaser Offerees"). The Preemption ----------------------------- Notice shall include the principal terms of the proposed Issuance, including without limitation the amount and kind of Subject Securities to be included in the Issuance, the Company will amend its Offer to Purchase dated February 19, 1999 to provide percentage of the total number of shares of Common Stock outstanding on a fully-diluted basis as if all shares of Common Stock issuable upon exercise of Options held by any Person were issued and outstanding that the Offer, as amended, will Subject Securities proposed to be at a price per Share equal to the Offer Price sold represent (lesscalculated, in the case of Shares any Subject Securities that are Options or other convertible instruments on the basis of the number of shares of Common Stock issuable upon the conditional immediate exercise or conversion of Company Stock Optionssuch Subject Securities), the exercise maximum and minimum price thereof) and per unit of such Subject Securities (which maximum price shall not exceed the minimum price by more than 110%), the name of the Persons to disclose whom the terms and conditions set forth in this Agreement. No condition to the offer Subject Securities will be Issued (the "Offer ConditionsProposed -------- Buyers"), any other material terms of the proposed Issuance and will ------ include: (a) may be waived in whole the case of any proposed Issuance of Subject Securities described in clause (i) or in part(ii) of the first paragraph of Section 8, an offer by the Company to Issue to, and at the Offer ---------------- shall not be terminatedoption of, without the prior written consent such Preemptive Purchaser Offeree, a percentage of the Investor and Subject Securities equal to the Company in their sole discretion. Notwithstanding portion that the foregoing but subject total number of shares of Common Stock held by such Preemptive Purchaser prior to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent such proposed Issuance represents as a percentage of the Investor, extend total number of shares of Common Stock outstanding as of immediately prior to giving effect to such Issuance (in each case not including any portion of such Subject Securities and calculated on a fully diluted basis as if all shares of Common Stock issuable upon exercise of Options held by any Person were issued and outstanding; such portion being referred to herein as the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived."Basic Preemptive Portion"); and ------------------------ (b) only in the case of any proposed Issuance of Subject Securities described in clause (ii) of the first paragraph of Section 8, if and solely to the extent such proposed Issuance together with any previous Issuances described in such clause (ii) does not exceed an aggregate purchase price of $3,000,000, an offer by the Company to Issue to, and at the option of, such Preemptive Purchaser Offeree, a portion (the "Special Preemptive Portion") of the Shares to be issued -------------------------- in such Issuance equal to the number obtained by multiplying: (i) the lesser of (A) the number obtained by dividing (x) $3,000,000 minus the aggregate purchase price received by the Company in any prior Issuance of Subject Securities described in clause (ii) of the first paragraph of Section 8 by (y) the per Share price to be received by the Company in such Issuance or (B) the total number of Shares of Subject Securities being offered in such Issuance; times (ii) a fraction, the numerator of which is the total number of shares of Common Stock held by such Preemptive Purchaser Offeree prior to such proposed Issuance and the denominator of which is the total number of shares of Common Stock held by all Preemptive Purchaser Offerees prior to such proposed Issuance (in each case not including any portion of such Subject Securities and calculated on a fully diluted basis as if all shares of Common Stock issuable upon exercise of Options held by any Person were issued and outstanding); provided, however, that in any case where the preceding clause (b) is -------- ------- applicable, the provisions of clause (b) shall apply prior to application of the provisions of clause (a) above. The Basic Preemptive Portion plus, if applicable, the Special Preemptive Portion allocable to any Preemptive Purchaser Offeree in accordance with the foregoing provisions of this Section 8.1.1 is referred to herein as the "Preemptive Portion." Subject to the provisions of this Section ------------------ 8, any and all offers to issue to any Preemptive Purchaser Offeree its preemptive Portion of Subject Securities shall be on the same terms and conditions conditions, with respect to each unit of the Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant Subject Securities issued to the Offer that the Company becomes obligated to accept for paymentPreemptive Purchaser Offerees, and pay for, pursuant as apply to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- Proposed Buyers with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement units of a material fact or omit to state any material fact required Subject Securities to be stated therein or necessary issued to them in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsIssuance. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Stockholders Agreement (Iron Age Corp)

Offer. (a) As soon as practicable after 5.1. Each Underwriter hereby, severally and not jointly, confirms to each of the date hereofCompany, the Selling Shareholders and to each of the other Underwriters that, subject to Sections 2.2, 5.2 and 5.3, to the extent of the valid Bids procured and uploaded by it (and, with respect to Kotak and MOIAL, to the extent of valid ASBA Bids procured and uploaded by KSL and MOFSL, respectively, in its capacity as an Underwriter (including valid Bids procured and uploaded by its respective Sub-Syndicate Members) in the Offer in relation to which Equity Shares have been allocated in accordance with the terms of this Agreement and the Offer Documents, each such Underwriter shall only be responsible for ensuring completion of the subscription or purchase in respect of such Bids and not for Bids procured and/ or uploaded by other Underwriters (or Bids procured and/ or uploaded by the respective Sub-Syndicate Members of such Underwriters) in the manner set forth in this Section 5. For the purpose of this Agreement, “valid Bids” shall mean such Bids made during the Bid/Offer Period for which funds have been successfully blocked and which are not liable to be rejected on any of the grounds disclosed in the Offer Documents or Applicable Laws. The Company will amend its Offer to Purchase dated February 19, 1999 to provide confirms that the Offer, as amended, will be at a price per Share equal to Equity Shares offered through the Offer Price shall be Allocated and subsequently Allotted to successful Bidders, including, Bids procured by the Underwriters (lessif any), in terms of the Red Xxxxxxx Prospectus and the Prospectus in the case of Shares issuable upon resident Bidders and the conditional exercise Preliminary Offering Memorandum and the Final Offering Memorandum in the case of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer (the "Offer Conditions") may be waived in whole or in partnon-resident Bidders, and the Offer ---------------- shall Applicable Law. 5.2. Each Underwriter, severally and not be terminatedjointly, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but agrees that, subject to Section 8.1(b)2.2, in the Company shallevent a Syndicate ASBA Bidder submitting its Bid to an Underwriter, unless otherwise requested by -------------- who is allocated Equity Shares in the InvestorOffer, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date defaults in its payment obligations in respect of the Offer (excluding defaults due to negligence, misconduct or default by the SCSBs or the Sponsor Banks) through any default in blocking of funds solely and directly due to insufficiency of funds in the relevant ASBA Account and such Bidder would have been entitled to receive the allotment of the Offer Conditions Equity Shares but for default in blocking of funds solely and directly due to insufficiency of funds in the relevant ASBA account, such Equity Shares shall not first be satisfied allocated to other Bidders in respect of any excess subscription in the same category as in which the default occurs or waived, until such time as such conditions are satisfied or waived. (b) Subject to in any other category in which there is any excess subscription in accordance with the terms SEBI ICDR Regulations and conditions of the Offer and this Section 2.3, the Company shall accept for paymentPreliminary Offering Memorandum, and pay for, not less ----------- than 21.0 million only if no such other Bidders are allocated such Equity Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to or if such other Bidders also default in the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration performance of the Offer. (c) On the date of amendment their payment obligations in respect of the Offer, the Company Underwriter that procured and uploaded the Bid from the Syndicate ASBA Bidder that first defaulted in the performance of its obligations and whose identification mark is reflected on the ASBA Form of such Syndicate ASBA Bidder (including Bids procured from the Syndicate ASBA Bidder and uploaded by such Underwriter’s Sub-Syndicate Members) shall file with make a payment, or cause payment of, the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with Price in respect of such Equity Shares to the Offerrelevant Escrow Account as soon as reasonably practicable upon receipt of the notice referenced in Section 6 but prior to finalization of Basis of Allotment by the Designated Stock Exchange and such Equity Shares shall be Allotted to the relevant Underwriter or to the purchaser procured by it. For the avoidance of doubt, 6 the Underwriters shall not be liable under the terms of this Agreement for any default in the blocking of funds in the relevant ASBA Account other than solely and directly due to insufficiency of funds in the relevant ASBA Account. 5.3. The Parties agree that, subject to the provisions of this Agreement, including Section 5.2, in the event that KSL or MOFSL fails to discharge its underwriting obligations under Section 5.2, the underwriting obligations of KSL and MOFSL under Section 5.2 shall be discharged by Kotak and MOIAL, as applicable. Such discharge of obligations shall be without any participation or involvement required by, or liability of the Company and the Selling Shareholders. 5.4. It is clarified that the Underwriters have not and will not be deemed to have procured Bids by Anchor Investors procured by the Book Running Lead Managers, or those ASBA Bids which shall contain have been procured by the SCSBs themselves or by the Registered Brokers, Collecting Depository Participants and RTAs and will not be responsible for withdrawal or incompleteness of any ASBA Bid arising due to the negligence, misconduct, default or fraud by the SCSBs or the Sponsor Bank (including any Bids which are received by Sponsor Banks, where the validation and funds blocking is not done by the Sponsor Banks). 5.5. Subject to Section 5.3, the obligations, representations, warranties, undertakings and liabilities of the Underwriters under this Agreement, including to procure subscribers or purchasers for, or subscribe to or purchase themselves, the Equity Shares at the Offer DocumentsPrice in accordance with Section 5 shall be several and not joint. The Offer Documents Subject to Section 5.3, each Underwriter shall comply as be liable only for its own acts and omissions and not for the acts and omissions of any other Underwriter or their respective Sub-Syndicate Members. In the event that any Underwriter discharges (“Discharging Underwriter”) any underwriting obligations of any other defaulting Underwriter pursuant to form Section 5 hereof (for the purposes of this Section 5 and Section 7 hereof, the “Defaulting Underwriter”), such Discharging Underwriter shall have full recourse to such Defaulting Underwriter (and their respective Sub-Syndicate Members) without any participation or involvement required by, or liability of, the Company, each of the Selling Shareholders or the other Underwriters. For the avoidance of doubt, the underwriting and selling commission and any other commissions or fees, expenses and applicable taxes (“Underwriting Fees”), in all material respects with respect of Equity Shares for which a Discharging Underwriter discharges underwriting obligations of any Defaulting Underwriter, shall be payable to the Exchange ActDischarging Underwriter and not to such Defaulting Underwriter. 5.6. In the event of a failure of any Defaulting Underwriter to fulfill its obligations, a Discharging Underwriter, at its discretion in addition to and without prejudice to the remedies available to it under Applicable Law, shall be entitled to sell or dispose of the Equity Shares (representing the shortfall in the underwriting obligations of the Defaulting Underwriter) to any person or generally in the market or otherwise at a price realizable by such Discharging Underwriter, and in the Offer Documentsevent that the proceeds from the sale of such Equity Shares is less than cost of the Equity Shares purchased by it or a Discharging Underwriter has not been able to sell or dispose of some or all of such Equity Shares, such Defaulting Underwriter shall fully indemnify and hold the Discharging Underwriter harmless from and against any such loss on account of the date first publishedsale or retention of some or all of such Equity Shares, sent including any costs or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact expenses incurred by such Discharging Underwriter on such purchase and sale. Any actions required to be stated therein or necessary taken by any of the Underwriters in order relation this Section 5.6 shall not require the Company and the Selling Shareholders to make the statements therein, any additional payments other than as required in light terms of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsthis Agreement. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Underwriting Agreement

Offer. (a) As soon Provided that this Agreement shall not have been terminated in accordance with Section 8.1 hereof and that none of the events or circumstances set forth in Annex I shall have occurred or exist, Parent shall cause Sub, as promptly as reasonably practicable after the date hereof, but in any event no later than five business days following the Company will amend its Offer date hereof, to Purchase dated February 19, 1999 to provide that commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer, as amended, will be at a price of $0.52 per Share equal share, net to the seller in cash, without interest (or at such higher price as Sub elects to offer) (the “Offer Price Price”), but subject to any withholding required by law. The obligation of Parent and Sub to accept and pay for Shares tendered shall be subject only to (less, in i) the case condition that there shall be validly tendered prior to the expiration date of the Offer and not withdrawn a number of Shares issuable upon which, when added to the conditional exercise shares of Company Common Stock Optionsowned by Parent, represent at least 90% of the exercise price thereofShares issued and outstanding on a fully diluted basis (the “Minimum Condition”) and (ii) to disclose the terms and other conditions set forth in this Agreement. No condition to Annex I (collectively, the offer (the "Offer Conditions") may be waived in whole or in part, ”). Parent and Sub expressly reserve the right to waive any of the Offer ---------------- shall Conditions (except that Parent and Sub may not be terminated, without waive the prior written Minimum Condition except with the consent of the Investor Company or as and to the Company extent provided in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(bthis Agreement), to increase the Company shallprice per share payable in the Offer and to make any other change or changes in the terms or conditions of the Offer, unless otherwise requested by -------------- including, without limitation, extending the Investorexpiration date, and mayexcept that, without the consent of the InvestorCompany, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions Parent and Sub shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (bi) Subject to reduce the terms and conditions number of the Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect subject to the Offer, 6 which shall contain (ii) reduce the Offer Documents. The Offer Documents shall comply as Price, (iii) impose any other conditions to form in all material respects with the Exchange Act, and the Offer Documents, on other than the date first published, sent Offer Conditions or given modify the Offer Conditions (other than to waive any Offer Conditions to the Company's stockholdersextent permitted by this Agreement), shall not contain any untrue statement (iv) except as provided in Section 1.1(b), extend the Offer, (v) change the form of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference consideration payable in the Offer Documents. The Investor and the Company each agrees promptly to correct or (vi) amend any written information provided by it for use in other term of the Offer Documents if and in a manner adverse to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsCommon Stock. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Merger Agreement (Tcsi Corp)

Offer. In the case of any proposed Issuance of ----- Subject Securities described in clause (ai) As soon as practicable of the first paragraph of Section 8 after the date hereofCompany has sold $5,000,000 in such Issuances, not fewer than fifteen (15) business days prior to the consummation of the Issuance, a notice (the "Preemption Notice") shall be furnished by the ----------------- Company to each holder of Management Securities other than any such holder the preemptive rights of which shall have expired pursuant to Section 8.3 (the "Preemptive Purchaser Offerees"). The Preemption ----------------------------- Notice shall include the principal terms of the proposed Issuance, including without limitation the amount and kind of Subject Securities to be included in the Issuance, the Company will amend its Offer percentage represented by the Subject Securities proposed to Purchase dated February 19be sold of the total number of shares of Common Stock outstanding on a fully-diluted basis, 1999 to provide that the Offercalculated as if all shares of Common Stock issuable upon exercise of Options held by any Person were issued and outstanding, as amended, will be at a price per Share equal to the Offer Price (lessand calculated, in the case of Shares any Subject Securities that are Options or other convertible instruments, on the basis of the number of shares of Common Stock issuable upon the conditional immediate exercise or conversion of Company Stock Optionssuch Subject Securities, the exercise maximum and minimum price thereof) and per unit of such Subject Securities (which maximum price shall not exceed the minimum price by more than 110%), the name of the Persons to disclose whom the terms and conditions set forth in this Agreement. No condition to the offer Subject Securities will be Issued (the "Offer ConditionsProposed Buyers") may be waived in whole or in part), any other material --------------- terms of the proposed Issuance and will include an offer by the Company to Issue to, and at the Offer ---------------- shall not be terminatedoption of, without the prior written consent such Preemptive Purchaser Offeree, a percentage of the Investor Subject Securities described in clause (i) of the first paragraph of Section 8 equal to the portion that the total number of shares of Common Stock held by such Preemptive Purchaser prior to such proposed Issuance represents as a percentage of the total number of shares of Common Stock outstanding immediately prior to giving effect to such Issuance (in each case not including any portion of such Subject Securities and calculated on a fully diluted basis as if all shares of Common Stock issuable upon exercise of Options held by any Person were issued and outstanding; such portion being referred to herein as the Company "Basic Preemptive Portion"). ------------------------ The Basic Preemptive Portion allocable to any Preemptive Purchaser Offeree in their sole discretion. Notwithstanding accordance with the foregoing but subject provisions of this Section 8.1.2 is referred to Section 8.1(b), herein as the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived"Preemptive Portion. (b) " ------------------ Subject to the provisions of this Section 8, any and all offers to issue to any Preemptive Purchaser Offeree its preemptive Portion of Subject Securities shall be on the same terms and conditions conditions, with respect to each unit of the Offer and this Section 2.3, the Company shall accept for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant Subject Securities issued to the Offer that the Company becomes obligated to accept for paymentPreemptive Purchaser Offerees, and pay for, pursuant as apply to the Offer as soon as practicable after the expiration of the Offer. (c) On the date of amendment of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- Proposed Buyers with respect to the Offer, 6 which shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement units of a material fact or omit to state any material fact required Subject Securities to be stated therein or necessary issued to them in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsIssuance. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Stockholders Agreement (Iron Age Corp)

Offer. (a) As soon as practicable after Not later than two (2) Business Days following execution of this Agreement, Buyer will make a written offer to all holders of Shares named in the shareholder register of the Company on the date hereof, the Company will amend its Offer of this Agreement to Purchase dated February 19, 1999 sell their Shares to provide that the Offer, as amended, will be at a price per Share equal Buyer pursuant to the Offer Price (less, in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and subject to the conditions set forth in of this Agreement (the “Offer”). Subject to Section 1.01(c) of this Agreement. No condition , the Offer will be made in substantially the form of the Notice of Offer attached as Annex C hereto and it will be open for acceptance for a period of 60 days from the date the Notice of Offer is first mailed to the offer holders of Shares (the "Offer Conditions"“Notice Date”); provided, however, that if Buyer has not received Acceptances (as defined below) may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent representing at least 662/3% of the Investor issued and outstanding Shares by the Company in their sole discretion. Notwithstanding the foregoing but subject end of such 60-day period, then Buyer may elect to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through for an additional 30 days (as and if extended, the Outside Date if at the then scheduled or any extended expiration date “Offer Period”). The Company shall inform Buyer of the Offer issuance of any Shares of the Company pursuant to the exercise of any Option prior to the Closing, and will assist Buyer in delivering the Offer Conditions shall not be satisfied or waived, until to such time as former Option Holder such conditions are satisfied or waivedthat the Offer will cover all issued and outstanding Shares. (b) Subject Any holder of Shares of the Company may accept the Offer by executing and delivering the Acceptance attached to the terms and conditions Notice of Offer (the “Acceptance”) to the Company, which Acceptances shall be irrevocable. The Company shall promptly provide copies of all Acceptances to Buyer. Upon acceptance of the Offer and this Section 2.3Offer, such holder of Shares of the Company shall accept be deemed an “Accepting Seller” for payment, and pay for, not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration purpose of the Offerthis Agreement. (c) On If the date holders of amendment at least 85% of the Offerissued and outstanding Shares (but less than all holders of the Shares of the Company) accept the Offer at any time within two months of the Notice Date, not later than two (2) Business Days following receipt of Acceptances representing at least 85% of the issued and outstanding Shares, Buyer shall send a notice to each holder of Shares of the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect to the Offer, 6 which shall contain who has not accepted the Offer Documents. The Offer Documents shall comply as (a “Dissenting Holder”), informing such Dissenting Holder of Buyer’s intention to form in all material respects with require such Dissenting Holder to sell its Shares of the Exchange Act, and the Offer DocumentsCompany to Buyer, on the date first publishedsame terms and conditions as set out in the Notice of Offer and this Agreement, sent or given pursuant to Section 341 of the Israeli Companies Law and Article 20(d) of the Company's stockholders’s Articles of Association (the “Section 341 Notice”); provided, shall not contain any untrue statement however, that upon receipt of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light Acceptances representing at least 662/3% but less than 85% of the circumstances under which they were madeissued and outstanding Shares, not misleadingBuyer in its sole discretion may elect to send a Section 341 Notice to each Dissenting Holder at any time during the Offer Period. In any event, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf Acceptances representing at least 662/3% of the Investor for inclusion or incorporation by reference in issues and outstanding Shares, within two (2) Business Days following the expiration of the Offer Documents. The Investor and the Company Period, Buyer shall send a Section 341 Notice to each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the InvestorDissenting Holder. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such comments. (d) Each Share purchased shall assist Buyer in the Offer shall automatically be cancelled dispatch of the Section 341 Notice to each Dissenting Holder and retired and shall cease to existeach Option Holder.

Appears in 1 contract

Samples: Transaction Agreement (BMC Software Inc)

Offer. The Xxxxxx Holder's notice shall contain an irrevocable offer to sell such Xxxxxx Shares to the Company (ain the manner set forth below) As soon as practicable at a purchase price equal to the price contained in, and on the same terms and conditions of, the Offer, and shall be accompanied by a true copy of the Offer (which shall identify the Offeror). At any time within 45 days after the date hereof, of the receipt by the Company will amend its Offer to Purchase dated February 19, 1999 to provide that the Offer, as amended, will be at a price per Share equal to the Offer Price (less, in the case of Shares issuable upon the conditional exercise of Company Stock Options, the exercise price thereof) and to disclose the terms and conditions set forth in this Agreement. No condition to the offer (the "Offer Conditions") may be waived in whole or in part, and the Offer ---------------- shall not be terminated, without the prior written consent of the Investor and the Company in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b), the Company shall, unless otherwise requested by -------------- the Investor, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived. (b) Subject to the terms and conditions of the Offer and this Section 2.3Xxxxxx Holders' notice, the Company shall accept have the right and option to purchase, or to arrange for paymenta third party to purchase, all of the Xxxxxx Shares covered by the Offer either (i) at the same price and pay foron the same terms and conditions as the Offer or (ii) if the Offer includes any consideration other than cash, then at the sole option of the Xxxxxx Holder, at the equivalent all-cash price, determined in good faith by the Board, by delivering a certified bank check or checks or wire transfer in the appropriate amount to the Xxxxxx Holder at the principal office of the Company against delivery of certificates or other instruments representing Xxxxxx Shares so purchased, appropriately endorsed by the Xxxxxx Holder. If at the end of such 45-day period, the Company has not tendered the purchase price for such shares in the manner set forth above, the Xxxxxx Holder may during the succeeding 30- day period sell not less ----------- than 21.0 million Shares and not more than 26.5 million Shares validly tendered and not withdrawn pursuant all of shares of Common Stock covered by the Offer to the Offer that Offeror at a price and on terms materially no less favorable to the Xxxxxx Holder than those contained in the Offer. No sale may be made to any Offeror unless the Offeror agrees in writing with the Company becomes obligated to accept for paymentbe bound by the provisions of this Agreement as if it were a Xxxxxx Holder. Promptly after such sale, the Xxxxxx Holder shall notify the Company of the consummation thereof and pay forshall furnish such evidence of the completion and time of completion of such sale and of the terms thereof as may reasonably be requested by the Company. If, pursuant to at the Offer as soon as practicable after end of the 30-day period following the expiration of the Offer. (c) On 45-day period for the date of amendment of the OfferCompany to purchase Xxxxxx Shares, the Company Xxxxxx Holder has not completed the sale of such Xxxxxx Shares as aforesaid, all the restrictions on sale, transfer or assignment contained in this Section 2(c) shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- again be in effect with respect to the Offer, 6 which shall contain the Offer Documentssuch Xxxxxx Shares. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given to the Company's stockholders, terms of this Section 2(c) shall not contain any untrue statement apply to a sale of Xxxxxx Shares by a material fact Xxxxxx Holder under Section 3 or omit by a Bring-Along Seller pursuant to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 13E-4 as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent of the Investor. The Company agrees to provide the Investor and its counsel any comments the Company or its counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsSection 4. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Stockholders' Agreement (Accuride Corp)

Offer. (a) As soon Provided that this Agreement shall not have been terminated in accordance with Section 8.1 hereof and none of the events set forth in paragraphs (a) through (g) of Annex A hereto shall have occurred or be existing (and shall not have been waived by the Purchaser), the Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereofhereof by issuing the Offer documents, substantially in the forms attached hereto as Exhibit A (the “Offer Documents”), to the Company’s shareholders. (b) The Offer Documents shall be posted by the Company will amend its Offer to Purchase dated February 19, 1999 to provide that on behalf of the Offer, as amended, will be at a price per Share equal Purchaser to the Company’s shareholders within five (5) business days of the date of this Agreement. (c) The Offer Price shall be made on the basis of 175.14 shares of ICE Common Stock (less, as defined in the case of Shares issuable upon the conditional exercise Section 4.2) in exchange for each one (1) share of Company Capital Stock and options to purchase 175.14 shares of ICE Common Stock (“ICE Options, the exercise price thereof) and for each OHG Option to disclose purchase one (1) share of OHG Common Stock. The ICE Options shall be issued on the terms and conditions stated in the proposed share option contract delivered with the Offer Documents, and the exercise price shall be adjusted using the following calculation: (i) the stated OHG Option exercise price divided by (ii) 175.14. By way of example, if the OHG Option exercise price is $0.55, the new exercise price will be 0.55/175.14, which equals $0.00314. (d) The Offer shall remain open to the Company’s shareholders and option holders to accept for a minimum of 21 days from the date that the Offer Documents are posted to the Company’s shareholders and option holders. (e) The obligation of the Purchaser to accept for payment and pay for shares of Company Capital Stock and OHG Options tendered pursuant to the Offer shall be subject to the satisfaction of the condition that there be validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of OHG Common Stock that represents at least 75% of the then outstanding shares of OHG Common Stock on a fully diluted basis (the “Minimum Condition”) and to the satisfaction or waiver by the Purchaser of the other conditions set forth in this Agreement. No condition Annex A hereto. (f) If the Purchaser receives valid acceptances of the Company’s shareholders holding at least 90% of the Company’s Capital Stock then it shall exercise its right in accordance with sections 974 to 991 of the Companies Xxx 0000 (enacted in the United Kingdom) to compulsorily acquire the remaining 10% of the Company’s Capital Stock on the same terms as the Offer. (g) The Company agrees that no shares of the Company’s Capital Stock held by the Company or any of its Subsidiaries (as defined in Section 9.11 hereof) will be tendered to the offer Purchaser pursuant to the Offer. (h) The Purchaser expressly reserves the "Offer Conditions") right to waive any of such conditions (other than the Minimum Condition), to increase the price per share of Company Capital Stock payable in the Offer, to change the terms of the Option Exchange and to make any other changes in the terms of the Offer; provided, however, that any such change is communicated to the Company’s shareholders and option holders, that no change may be waived in whole or in part, and the Offer ---------------- shall not be terminated, made without the prior written consent of the Investor and Company that decreases the price per share of the Company Capital Stock payable in their sole discretion. Notwithstanding the foregoing but subject to Section 8.1(b)Offer, reduces the maximum number of shares of the Company shallCapital Stock to be purchased in the Offer, unless otherwise requested by -------------- changes the Investorform of consideration to be paid in the Offer, and may, without the consent of the Investor, extend the Offer periodically through the Outside Date if at the then scheduled modifies or any extended expiration date of the Offer amends any of the conditions set forth in Annex A hereto, imposes conditions to the Offer Conditions shall not be satisfied in addition to the conditions set forth in Annex A hereto, waives the Minimum Condition or waived, until such time as such conditions are satisfied or waived. (b) Subject to makes other changes in the terms and conditions of the Offer that are in any manner adverse to the holders of shares of the Company Capital Stock or holders of OHG Options, requires the consent of the Lenders, or except as provided below, extends the Offer. (i) Subject to the terms of the Offer and this Section 2.3Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, the Company Purchaser shall accept for payment, payment and pay for, not less ----------- than 21.0 million Shares for all shares of Company Capital Stock and not more than 26.5 million Shares OHG Options validly tendered and not withdrawn pursuant to the Offer that the Company becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after it is permitted to do so under applicable law. (j) Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, extend the Offer beyond the scheduled expiration date, that shall be 12:00 noon eastern time on the twenty-first (21st) business day following the date of commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to the Purchaser’s obligation to accept for payment and to pay for the shares of Company Capital Stock shall not be satisfied or, to the extent permitted by this Agreement, waived. (ck) On the date of amendment Any extension of the Offer, the Company shall file with the SEC a Tender Offer Statement on Schedule 13E-4 (the "Schedule 13E-4") -------------- with respect pursuant to the Offer, 6 which preceding sentence of this Section 1.1 shall contain the Offer Documents. The Offer Documents shall comply as to form in all material respects with the Exchange Act, and the Offer Documents, on the date first published, sent or given be communicated to the Company's stockholders, ’s shareholders and shall not contain any untrue statement exceed the lesser of a material fact ten business days or omit to state any material fact required to be stated therein or necessary in order to make such fewer number of days that the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to written information supplied by or on behalf of the Investor for inclusion or incorporation by reference in the Offer Documents. The Investor and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps Purchaser reasonably believes are necessary to cause the Schedule 13E-4 as so corrected conditions of the Offer set forth in Annex A hereto to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Sharessatisfied; provided further, in each case as and to the extent required by applicable Federal securities laws. The Offer Documents shall be in form and substance reasonably satisfactory to the Investor and the Company will not file any Offer Document with the Commission or disseminate any Offer Document to its stockholders without the prior written consent however, that if all of the Investor. The Company agrees to provide conditions set forth in Annex A are satisfied at the Investor and its counsel any comments end of the Company or its counsel may receive from initial Offer period, except the Commission or its staff with respect to Minimum Condition, the Purchaser shall extend the Offer Documents promptly after the receipt of such comments and the Company will provide to the Investor and its counsel sufficient time and the opportunity to comment on any written or oral response to any such commentsfor at least three business days. (d) Each Share purchased in the Offer shall automatically be cancelled and retired and shall cease to exist.

Appears in 1 contract

Samples: Agreement of Securities Exchange and Plan of Reorganization (Intelligent Communication Enterprise Corp)

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