Terms of the Offer Upon the terms and subject to the conditions set forth in the Offer (including, if the Offer is extended, amended or supplemented, the terms and conditions of any such extension, amendment or supplement), the Purchaser will accept for payment and will purchase all Shares validly tendered on or prior to the Expiration Date (as hereinafter defined) and not withdrawn in accordance with the procedures described herein. The term "Expiration Date" means 12:00 Midnight, New York City time, on February 10, 1998 unless and until the Purchaser, in its sole discretion, shall have extended the period of time for which the Offer is open, in which event the term "Expiration Date" shall mean the latest time and date at which the Offer, as so extended by the Purchaser, shall expire. This Offer to Purchase, the related Letter of Transmittal and the other relevant materials are being mailed to record holders of Shares and are being furnished to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder lists or, if applicable, who are listed as participants in a clearing agency's security position listing for subsequent transmittal to beneficial owners of Shares. The Purchaser reserves the right (but shall not be obligated), in accordance with applicable rules and regulations of the Commission, to waive any or all of the conditions to the Offer. If, by the Expiration Date, any of such conditions have not been satisfied, the Purchaser reserves the right to (a) decline to accept for payment or pay for any Shares tendered, terminate the Offer and return all tendered Shares to tendering stockholders, (b) extend the Offer and, subject to the withdrawal rights described herein, retain all tendered Shares until the expiration of the Offer as extended or (c) waive such unsatisfied condition or conditions and, in accordance with applicable law and subject to giving sufficient notice to stockholders pursuant to the Offer and in compliance with applicable rules and regulations of the Commission, accept for payment and pay for all Shares validly tendered. The Purchaser will disseminate public announcements concerning material changes to the Offer in accordance with applicable law. The manner in which the Purchaser will make any such public announcement may, if appropriate, be limited to a press release.
Consummation of the Acquisition On or prior to the Closing Date, there shall have been delivered to the Administrative Agent true and correct copies of all Acquisition Documents, certified as such by an appropriate officer of the Borrower, and all terms and conditions of the Acquisition Documents shall be in form and substance reasonably satisfactory to the Lead Arrangers. The Acquisition, including all of the terms and conditions thereof and including, without limitation, the Merger, shall have been duly approved by the board of directors and (if required by applicable law) the shareholders of each of the Borrower (prior to the consummation of the Merger), the Target and each other Group Company party thereto, and all Acquisition Documents shall have been duly executed and delivered by the parties thereto and shall be in full force and effect. The representations and warranties set forth in the Acquisition Documents shall be true and correct in all material respects as if made on and as of the Closing Date (except to the extent such representations and warranties expressly refer to a prior date, in which case such representations and warranties shall have been true and correct as of such prior date), and each of the parties to the Acquisition Documents shall have complied in all material respects with all covenants set forth in the Acquisition Documents to be complied with by it on or prior to the Closing Date (without giving effect to any modification, amendment, supplement or waiver of any of the material terms thereof unless consented to by the Lead Arrangers, which consent shall not be unreasonably withheld or delayed). Each of the material conditions precedent to the Group Companies’ obligations to consummate the Acquisition as set forth in the Acquisition Documents shall have been satisfied to the reasonable satisfaction of the Lead Arrangers or waived with the consent of the Lead Arrangers, and, on or prior to the Closing Date and prior to the borrowing of the initial Loans, the Acquisition shall have been consummated for aggregate consideration not in excess of $510,000,000 (excluding purchase price adjustments) (excluding related transaction fees and expenses not exceeding $20,000,000) in accordance with all applicable laws and the Acquisition Documents (without giving effect to any material amendment or modification thereof or material waiver with respect thereto including, but not limited to, any material modification, amendment, supplement or waiver relating to any disclosure schedule or exhibit, unless such modification, amendment, supplement or waiver could not reasonably be expected to be materially adverse in any respect to the Lenders or unless consented to by the Lead Arrangers). On the Closing Date, the certificate of merger with respect to the Merger shall have been filed with the appropriate Governmental Authority having primary jurisdiction over affairs of corporations in Delaware.
CERTAIN CONDITIONS OF THE OFFER Annex A to the Merger Agreement provides that notwithstanding any other provision of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of the Merger Agreement), Purchaser shall not be required to accept for payment or, subject to the applicable rules and regulations of the Commission, pay for, and may delay the acceptance for payment of or, subject to the applicable rules and regulations of the Commission, payment for, any Shares tendered pursuant to the Offer, and may terminate the Offer and not accept for payment any Shares, if (x) any applicable waiting period under the HSR Act has not expired or terminated prior to the expiration of the Offer, (y) the Minimum Condition has not been satisfied or (z) at any time on or after the date of the Merger Agreement and before the time of acceptance of Shares pursuant to the Offer, any of the following events shall have occurred: (a) there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental Entity, to the Offer or the Merger, that (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii) restrains or prohibits the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger Agreement, (iii) imposes material limitations on the ability of Purchaser, or renders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholders; or (b) (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed in any adverse manner to Parent and Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation of the Offer, the Merger, or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement with respect to any Superior Proposal pursuant to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 29
Terms of the Transaction 9 2.1 Agreement to Sell and to Purchase the Securities................ 9 2.2
Terms of the Offering We may advise you orally or by one or more wires, telexes, telecopy or electronic data transmissions, or other written communications (each, a “Wire”) of the particular method and supplementary terms and conditions of any Offering (including the price or prices at which the Securities initially will be offered by the several Underwriters, or if the price is to be determined by a formula based on market price, the terms of the formula, (the “Offering Price”) and any Selling Concession or, if applicable, Reallowance) in which you are invited to participate. Any such Wire may also amend or modify such provisions of this Master SDA in respect of the Offering to which such Wire relates, and may contain such supplementary provisions as may be specified in any Wire relating to an Offering. To the extent such supplementary terms and conditions are inconsistent with any provision herein, such supplementary terms and conditions shall supersede any provision of this Master SDA. Unless otherwise indicated in any such Wire, acceptances and other communications by you with respect to an Offering should be sent pursuant to the terms of Section 19 hereof. Notwithstanding that we may not have sent you a Wire or other form of invitation to participate in such Offering or that you may not otherwise have responded by wire or other written communication (any such communication being deemed “In Writing”) to any such Wire or other form of invitation, you will be deemed to have accepted the terms of our offer to participate as a Selected Dealer and of this Master SDA (as amended, modified or supplemented by any Wire) by your purchase of Securities or otherwise receiving and retaining an economic benefit for participating in the Offering as a Selected Dealer. We reserve the right to reject any acceptance in whole or in part. Any Offering will be subject to delivery of the Securities and their acceptance by us and any other Underwriters may be subject to the approval of all legal matters by counsel and may be subject to the satisfaction of other conditions. Any application for additional Securities will be subject to rejection in whole or in part.
The Acquisition Upon the terms and subject to the conditions hereof, at the Closing (as hereinafter defined) the parties shall do the following:
Expiration and Extension of the Offer The Offer shall initially be scheduled to expire at one minute after 11:59 p.m. (New York City time) on the twentieth business day (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) following the Offer Commencement Date (the initial expiration date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, unless this Agreement has been terminated in accordance with Article VII (and subject to the Company’s and Parent’s respective rights to terminate this Agreement in accordance with Article VII), (i) Merger Sub shall extend the Offer and the Expiration Date for any period required by the Securities Laws, the interpretations and positions of the SEC and its staff with respect thereto or the rules and regulations of NASDAQ applicable to the Offer or as may be required by any other Governmental Authority, and (ii) if at any scheduled Expiration Date the Tender Offer Conditions shall not have been satisfied or earlier waived by Parent or Merger Sub, Merger Sub shall (and shall be permitted to) extend the Offer and the Expiration Date on one or more occasions, in consecutive increments, up to ten (10) Business Days each after such previously scheduled Expiration Date (or such longer period as Parent and the Company may agree) to permit such Tender Offer Condition to be satisfied; provided, that if, as of the then-scheduled Expiration Date, the sole unsatisfied Tender Offer Condition (other than those conditions that by their nature are to be satisfied at the Acceptance Time and the condition with respect to the delivery of certificates referenced in paragraph (5) of Exhibit A) is the Minimum Condition, Merger Sub shall only be required (but shall have the right in its sole discretion) to extend the Offer and the Expiration Date for a single period equal to the shorter of (A) twenty (20) Business Days and (B) the number of Business Days remaining prior to the Outside Date; provided, further, that Merger Sub shall in no event be required to extend the Offer and the Expiration Date to a date later than the earlier to occur of the termination of this Agreement in accordance with to Article VII and the Outside Date.
Conditions of the Offer Notwithstanding any other term of the Offer, the Purchaser (which is an affiliate of the General Partner) will not be required to accept for payment or to pay for any Units tendered if all authorizations, consents, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, necessary for the consummation of the transactions contemplated by the Offer shall not have been filed, occurred or been obtained prior to the Expiration Date. Furthermore, notwithstanding any other term of the Offer and in addition to the Purchaser's right to withdraw the Offer at any time before the Expiration Date, the Purchaser (which is an affiliate of the General Partner) will not be required to accept for payment or pay for any Units not theretofore accepted for payment or paid for and may terminate or amend the Offer as to such Units if, at any time on or after the date of the Offer and before the Expiration Date, any of the following conditions exists:
Terms and Conditions of the Offer The respective obligations of Merger Sub to, and of Parent to cause Merger Sub to, irrevocably accept for payment, and pay for, any shares of Company Common Stock validly tendered pursuant to the Offer (and not validly withdrawn) are subject only to the conditions set forth in Annex I (the “Offer Conditions”) (without limiting the right of Merger Sub to terminate, extend or modify the Offer to the extent permitted under and in accordance with the terms of this Agreement). The Offer Conditions are for the sole benefit of Parent and Merger Sub, and Parent and Merger Sub may waive, in whole or in part, any Offer Condition at any time and from time to time, in their sole and absolute discretion, other than the Minimum Tender Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company in its sole and absolute discretion. Parent and Merger Sub expressly reserve the right to increase the Offer Price or to waive or make any other changes to the terms and conditions of the Offer; provided that unless otherwise expressly provided herein or previously approved by the Company in writing (in its sole and absolute discretion), Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Company Common Stock sought to be purchased in the Offer, (ii) reduce the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) amend, modify or waive the Minimum Tender Condition, the Regulatory Condition, the Restraint Condition or the Termination Condition, (v) add to the Offer Conditions or amend, modify or supplement the Offer, including any Offer Condition, in any manner adverse to the Company or any holder of Company Common Stock or in any manner that would reasonably be expected to prevent or materially delay the consummation of the Offer or the Merger or (vi) extend or otherwise change the expiration date of the Offer in any manner other than in accordance with the terms of Section 1.01(d).
