Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreement (as described below). The following description of the Tender and Support Agreement is only a summary and is qualified in its entirety by reference to the form of Tender and Support Agreement, a copy of which is filed as Exhibit (d)(3) of the Schedule TO and is incorporated herein by reference. For a complete understanding of the Tender and Support Agreement, you are encouraged to read the full text of the form of Tender and Support Agreement. Concurrently with entering into the Merger Agreement, Xxxxxx and Xxxxxxxxx entered into a Tender and Support Agreement dated June 22, 2022 (“Tender and Support Agreement”) with each of Xxxxx Xxxxxxx, Ph.D., Xxxxxxx Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxxxx, M.D., Xxxx Xxxxxx, PhD., Xxxxxx Xxxxxxxxxx, Ph.D., Xxxxxx Xxxx Xx., M.D., Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxxx Xxxxx, M.D., and Xxxx Xxxxx, M.D., Ph.D. (each a “Supporting Stockholder”). As of July 5, 2022, the Supporting Stockholders collectively directly or indirectly own approximately 1.02% of all Shares issued and outstanding. Parent expressly disclaims beneficial ownership of all Shares covered by each Tender and Support Agreement. The Tender and Support Agreement provides that, no later than ten (10) business days after the commencement of the Offer, each Supporting Stockholder will tender into the Offer all of the outstanding Shares beneficially owned by such Supporting Stockholder and any Shares subsequently acquired by such Supporting Stockholder (collectively, the “Subject Shares”). Each Supporting Stockholder agreed not to withdraw its Subject Shares unless its Tender and Support Agreement has been terminated. Each Tender and Support Agreement also provides that, in connection with any meeting of stockholders of the Company, or any action by written consent, the applicable Supporting Stockholder will vote all of the Subject Shares against any Acquisition Proposal, or other proposal, action, agreement or transaction TABLE OF CONTENTS involving the Company that is intended, or would reasonably be expected to, impede, interfere with, delay, postpone, adversely effect, or prevent the consummation of the Offer or the Merger or the other transactions contemplated by the Merger Agreement. The Supporting Stockholder, solely in its capacity as a stockholder of the Company, will not and will instruct its Representatives not to directly or indirectly: • continue any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to an Acquisition Proposal; • solicit, initiate or knowingly facilitate or knowingly encourage (including by way of providing non-public information) any inquiries, proposals or offers, or the making of any submission or announcement of any inquiry regarding, or the making of any proposal or offer that, constitutes or could reasonably be expected to lead to an Acquisition Proposal; • engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information in connection with, or for the purpose of soliciting or knowingly encouraging or facilitating, an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal (other than solely in response to an unsolicited inquiry to refer such person to the restrictions of the Merger Agreement and this provision of the Tender and Support Agreement so long as the discussion or response is limited to such referral); • enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal; or • knowingly encourage or recommend any other holder of Shares to vote against the Merger or to not tender Shares into the Offer. The Tender and Support Agreement will terminate automatically upon the first to occur of (a) the termination of the Merger Agreement, (b) the Effective Time, (c) any decrease to the Offer Price, or (d) the termination of the Tender and Support Agreement by written notice from Parent to such Supporting Stockholder.
Appears in 1 contract
Samples: Offer to Purchase (Invox Pharma LTD)
Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreement Agreements (as described defined below). The following description of the Tender and Support Agreement Agreements is only a summary and is qualified in its entirety by reference to the form of Tender and Support AgreementAgreements, a copy copies of which is are filed as Exhibit Exhibits (d)(2) and (d)(3) of the Schedule TO and is incorporated herein by reference. For a complete understanding of the Tender and Support Agreement, you are encouraged to read the full text of the form of Tender and Support Agreement. Concurrently with entering into the Merger Agreement, Xxxxxx Xxxxx and Xxxxxxxxx Purchaser entered into a (i) Tender and Support Agreement dated June 22(as it may be amended from time to time, 2022 (the “BCC Tender and Support Agreement”) ), dated as of January 10, 2020, with each of Xxxxx XxxxxxxBay City Capital Fund V, Ph.D.L.P., Xxxxxxx XxxxxxxBay City Capital Fund V Co-XxxxxInvestment Fund, Xxxxx XxxxxxxxxxL.P. and Bay City Capital, M.D.LLC (collectively, Xxxx Xxxxxx, PhD., Xxxxxx Xxxxxxxxxx, Ph.D., Xxxxxx Xxxx Xx., M.D., Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxxx Xxxxx, M.D., and Xxxx Xxxxx, M.D., Ph.D. (each a the “Supporting BCC Stockholder”), and (ii) Tender and Support Agreement (as it may be amended from time to time, the “NEA Tender and Support Agreement”, and together with the BCC Tender and Support Agreement, the “Tender and Support Agreements”), dated as of January 10, 2020, with New Enterprise Associates 13, L.P. and NEA Ventures 2011, Limited Partnership (collectively, the “NEA Stockholder” and together with the BCC Stockholder, the “Supporting Stockholders”). As of July 5, 2022Collectively, the Supporting Stockholders collectively directly beneficially owned 7,019,296 Shares (or indirectly own approximately 1.0212.8% of all Shares issued the outstanding Shares) as of January 9, 2020. Xxxxx and outstanding. Parent the Purchaser expressly disclaims disclaim beneficial ownership of all Shares covered by each the Tender and Support AgreementAgreements. The Tender and Support Agreement provides Agreements provide that, no later than ten (10) 10 business days after the commencement of the Offer, each the Supporting Stockholder Stockholders will tender into the Offer Offer, and not withdraw, all outstanding Shares the Supporting Stockholder owns of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the outstanding Shares beneficially owned by date of the Tender and Support Agreements or that the Supporting Stockholders acquires record ownership or beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of after such Supporting Stockholder and any Shares subsequently acquired by such Supporting Stockholder date during the Support Period (as defined below) (collectively, the “Subject Shares”). Each Supporting Stockholder agreed not to withdraw its Subject Shares unless its During the period from January 10, 2020 until the termination of the Tender and Support Agreement has been terminated. Each Tender and Agreements (the “Support Agreement also provides thatPeriod”), the Supporting Stockholders have agreed to vote (i) against any Company Takeover Proposal, (ii) against any change in connection with any meeting of stockholders membership of the Company, Dermira Board that is not recommended or any action approved by written consent, the applicable Supporting Stockholder will vote all of the Subject Shares Dermira Board and (iii) against any Acquisition Proposal, or other proposal, proposed action, agreement or transaction TABLE OF CONTENTS involving the Company Dermira that is intended, or would reasonably be expected toexpected, to impede, interfere with, delay, postpone, adversely effect, affect or prevent the consummation of the Offer or Offer, the Merger or the other transactions contemplated by Transactions. During the Merger AgreementSupport Period, Xxxxx is appointed as the Supporting Stockholders’ attorney-in-fact and proxy to so vote their Subject Shares. During the Support Period, the Supporting Stockholders have further agreed not to, directly or indirectly, (i) create or permit to exist any lien, other than certain permitted liens, on any of the Supporting Stockholders’ Subject Shares, (ii) transfer, sell (including short sell), assign, gift, hedge, pledge, grant a participation interest in, hypothecate or otherwise dispose of, or enter into any derivative arrangement with respect to (collectively, “Transfer”), any of the Supporting Stockholders’ Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any contract with respect to any Transfer of the Supporting Stockholders’ Subject Shares or any interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any of the Supporting Stockholders’ Subject Shares, (v) deposit or permit the deposit of any of the Supporting Stockholders’ Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of the Supporting Stockholders’ Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of the Supporting Stockholders’ obligations thereunder in any material respect, otherwise make any representation Table of Contents or warranty of the Supporting Stockholders therein untrue or incorrect, or have the effect of preventing or disabling the Supporting Stockholders from performing any of their obligations under the Tender and Support Agreements. The restrictions on Transfer are subject to certain customary exceptions. During the Support Period, the Supporting StockholderStockholders, solely in its capacity their capacities as a stockholder stockholders of the CompanyDermira, will shall not, and shall cause their representatives, officers and employees not and will instruct its Representatives not to to, directly or indirectly: • continue any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to an Acquisition Proposal; • (i) solicit, initiate or initiate, knowingly facilitate or knowingly encourage (including by way of providing non-public information) any inquiries, proposals or offers, or the making of any submission or announcement of any inquiry regardinginquiry, or the making of any proposal or offer that, that constitutes or could reasonably be expected to lead to an Acquisition any Company Takeover Proposal; • , (ii) directly or indirectly engage in, continue enter into or otherwise participate in any discussions or negotiations with any person regarding, or furnish to any person any non-public information or afford access to the business, properties, assets, books or records of Dermira to, or take any other action to assist, knowingly facilitate or knowingly encourage any effort by any person, in each case in connection withwith or in response to any inquiry, offer or proposal that constitutes, or for the purpose of soliciting or knowingly encouraging or facilitating, an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition any Company Takeover Proposal (other than than, solely in response to an unsolicited inquiry that did not result from a material breach of Section 4.6 of the Tender and Support Agreements, to refer such the inquiring person to the restrictions of the Tender and Support Agreements and of the Merger Agreement and this provision of to limit the Tender and Support Agreement so long as the discussion or response is limited Supporting Stockholders’ other communication exclusively to such referral); • , (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, purchase agreement, acquisition agreement, option agreement in principle or other similar agreement with respect instrument relating to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Company Takeover Proposal; or • , (iv) knowingly encourage or recommend any other holder of Shares to vote against the Merger or to not tender Shares into the OfferOffer or (v) resolve or agree to do any of the foregoing. The Tender and Support Agreement will Agreements provide that the Supporting Stockholders’ obligations under the agreements are solely in their respective capacities as stockholders of Dermira, and not, if applicable, in such stockholders’ or any of their affiliates’ capacity as a director, officer or employee of Dermira, and that nothing in the Tender and Support Agreements in any way restricts a director or officer of Dermira in the taking of any actions (or failures to act) in his or her capacity as a director or officer of Dermira, or in the exercise of his or her fiduciary duties as a director or officer of Dermira. The Tender and Support Agreements terminate automatically upon the first to occur earliest of (ai) the valid termination of the Merger AgreementAgreement in accordance with its terms, (bii) the Effective Time, (c) any decrease to the Offer Price, or (diii) the termination of the a Tender and Support Agreement by written notice from Parent Xxxxx or (iv) the date on which any amendment to such the Merger Agreement or the Offer is effected without the Supporting StockholderStockholders’ consent that decreases the amount, or changes the form or terms, of consideration payable to all stockholders of Dermira pursuant to the terms of the Merger Agreement.
Appears in 1 contract
Samples: Offer to Purchase (ELI LILLY & Co)
Tender and Support Agreements. In connection with the Merger Agreement, certain shareholders entered into separate Tender and Support Agreements, dated as of October 6, 2008, with Lilly, which we refer to as the “Support Agreements.” The following is a summary of the material certain provisions of the Tender and Support Agreement (as described below). The following description of the Tender and Support Agreement is only a summary and is Agreements are qualified in its their entirety by reference to the form of Tender and Support AgreementAgreements themselves, a copy of which is filed as Exhibit (d)(3) of the Schedule TO and is are incorporated herein by reference. For a complete understanding We have filed copies of the Tender Support Agreements as exhibits to the Schedule TO. Shareholders and Support Agreement, you are encouraged to other interested parties should read the full text Support Agreements for a more complete description of the form of Tender provisions summarized below. Barberry Corp., High River Limited Partnership and Support Agreement. Concurrently Icahn Enterprises Holdings L.P., which are entities affiliated with entering into ImClone’s Chairman, Xxxx X. Xxxxx, (the Merger Agreement“Icahn Entities”), Xxxxxx and Xxxxxxxxx entered into are each parties to a Tender and Support Agreement dated June 22, 2022 (“Tender and Support Agreement”) with each of Xxxxx Xxxxxxx, Ph.D., Xxxxxxx Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxxxx, M.D., Xxxx Xxxxxx, PhD., Xxxxxx Xxxxxxxxxx, Ph.D., Xxxxxx Xxxx Xx., M.D., Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxxx Xxxxx, M.D., have agreed to tender in the Offer and Xxxx Xxxxx, M.D., Ph.D. (each a “Supporting Stockholder”). As of July 5, 2022, the Supporting Stockholders collectively directly not withdraw any Shares it holds or indirectly own approximately 1.02% of all Shares issued and outstanding. Parent expressly disclaims beneficial ownership of all Shares covered by each Tender and Support Agreement. The Tender and Support Agreement provides that, no later than ten (10) business days acquires after the commencement of the Offer. If the Merger is completed, each Supporting Stockholder will tender into the Offer all of the outstanding Icahn Entities has agreed to waive any appraisal rights in connection with the Merger. Each of the Icahn Entities has also agreed to vote all Shares beneficially owned or controlled by such Supporting Stockholder and any Shares subsequently acquired by such Supporting Stockholder (collectively, the “Subject Shares”). Each Supporting Stockholder agreed not to withdraw its Subject Shares unless its Tender and Support Agreement has been terminated. Each Tender and Support Agreement also provides that, it in connection with any meeting of stockholders of the Company, ImClone’s shareholders or any action by written consent, consent in lieu of a meeting of shareholders: • in favor of adopting the applicable Supporting Stockholder will vote all Merger Agreement and approval of the Subject Shares against any Acquisition Proposal, or other proposal, action, agreement or transaction TABLE OF CONTENTS involving the Company that is intended, or would reasonably be expected to, impede, interfere with, delay, postpone, adversely effect, or prevent the consummation of the Offer or the Merger or the other transactions contemplated Merger; • as directed by the Merger Agreement. The Supporting Stockholder, solely in its capacity as a stockholder of the Company, will not and will instruct its Representatives not to directly or indirectly: • continue any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing Xxxxx with respect to an Acquisition Proposal; • solicitas directed by Lilly with respect to any change in the business, initiate management or board of directors of ImClone; and • as directed by Lilly against any proposal, action or agreement which would impede, frustrate, prevent or nullify any provision of the Support Agreements or the Merger Agreement, result in a breach in any respect of any covenant, representation, warranty or other obligation of ImClone under the Merger Agreement, or result in any of the conditions to the Offer or the Merger not being satisfied. Each of the Icahn Entities granted Lilly an irrevocable proxy covering all of such shareholders’ Shares to vote in accordance with the foregoing. During the term of the Support Agreements, except as otherwise provided therein, none of the Icahn Entities will: • transfer or pledge such Icahn Entities’ Shares or any interest therein, except with Xxxxx’x written consent; • enter into any contract with respect to such transfer; • grant any proxy, power-of-attorney or other authorization or consent in or with respect to such Icahn Entities’ Shares; • deposit such Icahn Entities’ Shares into a voting trust, or enter into a voting agreement or arrangement with respect to such Shares; or • take any other action that would make any representation of the Icahn Entities in the Support Agreements untrue or incorrect in any material respect or in any way restrict, limit or interfere in any material respect with the performance of such Icahn Entities’ obligations under the Support Agreements or the transactions contemplated thereby or in the Merger Agreement. 48 Table of Contents Additionally, each of the Icahn Entities has agreed to notify Lilly promptly (and in any event within 24 hours) if such Icahn Entity receives an Acquisition Proposal, including the name of the third party making the Acquisition Proposal and if written, a copy of the Acquisition Proposal. Pursuant to the Support Agreements, each of the Icahn Entities agreed to immediately cease and cause to be terminated any existing solicitation, encouragement, discussion or negotiation with any third parties with respect to any Acquisition Proposal. During the term of the Support Agreements, each of the Icahn Entities agreed not to and agreed not to authorize its representatives and agents to: • initiate, solicit or knowingly facilitate or knowingly encourage (including by way of providing non-public information) the submission of any inquiries, proposals or offers, offers which constitute or the making of any submission or announcement of any inquiry regarding, or the making of any proposal or offer that, constitutes or could may reasonably be expected to lead to an any Acquisition Proposal; • Proposal or engage in, continue or otherwise participate in any discussions or negotiations regarding, with respect thereto; • approve or furnish recommend or publicly propose to approve or recommend any person Acquisition Proposal; • make any non-public information in connection with, statement or for proposal inconsistent with the purpose of soliciting Company Board Recommendation; or knowingly encouraging or facilitating, an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal (other than solely in response to an unsolicited inquiry to refer such person to the restrictions of the Merger Agreement and this provision of the Tender and Support Agreement so long as the discussion or response is limited to such referral); • enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to an any Acquisition Proposal or requiring any proposal of the Icahn Entities to terminate its obligations under the Support Agreements or offer that could reasonably be expected fail to lead to an Acquisition Proposalconsummate the transactions contemplated by the Support Agreements. The Support Agreements, and all rights and obligations of Lilly and the Icahn Entities will terminate on the earlier of: (i) mutual agreement of the Icahn Entities and Lilly; or • knowingly encourage or recommend any other holder (ii) the effective time of Shares to vote against the Merger, (iii) the date the Merger Agreement is terminated, (iv) the acquisition by Xxxxx of the Shares subject to the Support Agreements, whether in the Offer or to not tender Shares into the Offer. The Tender and Support Agreement will terminate automatically upon the first to occur of otherwise, (av) the termination of the Offer prior to the acceptance for payment of Shares by the Purchaser, and (vi) the ImClone board having effected a Change in Board Recommendation in accordance with the no-solicitation provisions of the Merger Agreement, (b) the Effective Time, (c) any decrease to the Offer Price, or (d) the termination of the Tender and Support Agreement by written notice from Parent to such Supporting Stockholder.
Appears in 1 contract
Samples: Offer to Purchase (Lilly Eli & Co)
Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreement (as described below). The following description of the Tender and Support Agreement is only a summary and is qualified in its entirety by reference to the form of Tender and Support Agreement, a copy of which is filed as Exhibit (d)(3) of the Schedule TO and is incorporated herein by reference. For a complete understanding of the Tender and Support Agreement, you are encouraged to read the full text of the form of Tender and Support Agreement. Concurrently with entering entry into the Merger Agreement, Xxxxxx Xxxxx and Xxxxxxxxx Purchaser entered into a the Tender and Support Agreement dated June 22Agreements with the Supporting Stockholders. Collectively, 2022 (“Tender and Support Agreement”) with each of Xxxxx Xxxxxxx, Ph.D., Xxxxxxx Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxxxx, M.D., Xxxx Xxxxxx, PhD., Xxxxxx Xxxxxxxxxx, Ph.D., Xxxxxx Xxxx Xx., M.D., Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxxx Xxxxx, M.D., and Xxxx Xxxxx, M.D., Ph.D. (each a “Supporting Stockholder”). As as of July 53, 20222024, the Supporting Stockholders collectively directly or indirectly own beneficially owned approximately 1.0220.5% of all Shares issued the outstanding Shares. Xxxxx and outstanding. Parent Purchaser expressly disclaims disclaim beneficial ownership of all Shares covered by each the Tender and Support AgreementAgreements. The Tender and Support Agreement provides Agreements provide that, no later than ten (10) 10 business days after the commencement of the Offer, each Supporting Stockholder will tender into the Offer Offer, and not withdraw, all outstanding Shares (other than Morphic Stock Options that are not exercised during the Support Period (as defined below)) each Supporting Stockholder owns of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the outstanding Shares beneficially owned by date of the Tender and Support Agreements or that the Supporting Stockholders acquire record ownership or beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of after such Supporting Stockholder and any Shares subsequently acquired by such Supporting Stockholder date during the Support Period (collectively, the “Subject Shares”). Each Supporting Stockholder agreed not to withdraw its Subject Shares unless its Tender and Support Agreement has been terminated. Each Tender and Support Agreement also provides thatDuring the period from July 7, in connection with any meeting of stockholders of the Company, or any action by written consent, the applicable Supporting Stockholder will vote all of the Subject Shares against any Acquisition Proposal, or other proposal, action, agreement or transaction TABLE OF CONTENTS involving the Company that is intended, or would reasonably be expected to, impede, interfere with, delay, postpone, adversely effect, or prevent the consummation of the Offer or the Merger or the other transactions contemplated by the Merger Agreement. The Supporting Stockholder, solely in its capacity as a stockholder of the Company, will not and will instruct its Representatives not to directly or indirectly: • continue any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to an Acquisition Proposal; • solicit, initiate or knowingly facilitate or knowingly encourage (including by way of providing non-public information) any inquiries, proposals or offers, or the making of any submission or announcement of any inquiry regarding, or the making of any proposal or offer that, constitutes or could reasonably be expected to lead to an Acquisition Proposal; • engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information in connection with, or for the purpose of soliciting or knowingly encouraging or facilitating, an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal (other than solely in response to an unsolicited inquiry to refer such person to the restrictions of the Merger Agreement and this provision of the Tender and Support Agreement so long as the discussion or response is limited to such referral); • enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal; or • knowingly encourage or recommend any other holder of Shares to vote against the Merger or to not tender Shares into the Offer. The Tender and Support Agreement will terminate automatically upon the first to occur of (a) the termination of the Merger Agreement, (b) the Effective Time, (c) any decrease to the Offer Price, or (d) 2024 until the termination of the Tender and Support Agreement Agreements (the “Support Period”), each Supporting Stockholder has agreed, in connection with any annual or special meeting of the stockholders of Morphic, however called, including any adjournment or postponement thereof, and in connection with any action proposed to be taken by written notice from Parent consent of the stockholders of Morphic, in each case to the fullest extent that such Supporting Stockholder.Stockholders’ Subject Shares (other than Morphic Stock Options that are not exercised during the Support Period) are entitled to vote or consent thereon, to (i) appear at each such meeting or otherwise cause all of his, her or its Subject Shares to be counted as present thereat for purposes of determining a quorum and (ii) be present (in person or by proxy) and vote (or cause to be voted) or deliver (or cause to be delivered) a written consent with respect to all of his, her or its Subject Shares, (x) against any Company Takeover Proposal (other than the Merger), (y) against any change in membership of the Morphic Board that is not recommended or approved by the Morphic Board, and (z) against any other proposed action,
Appears in 1 contract
Samples: Offer to Purchase (ELI LILLY & Co)
Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreement Agreements (as described defined below). The following description of the Tender and Support Agreement Agreements is only a summary and is qualified in its entirety by reference to the form of Tender and Support AgreementAgreements, a copy copies of which is are filed as Exhibit Exhibits (d)(2) and (d)(3) of to the Schedule TO and is are incorporated herein by reference. For a complete understanding of the Tender and Support Agreement, you are encouraged to read the full text of the form of Tender and Support Agreement. Concurrently with entering entry into the Merger Agreement, Xxxxxx and Xxxxxxxxx Xxxxx xnd Purchaser entered into a (i) Tender and Support Agreement dated June 22(as it may be amended from time to time, 2022 (the “RA Tender and Support Agreement”), dated as of June 18, 2023, with RA Capital and (ii) with each of Xxxxx XxxxxxxTender and Support Agreement (as it may be amended from time to time, Ph.D., Xxxxxxx Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxxxx, M.D., Xxxx Xxxxxx, PhD., Xxxxxx Xxxxxxxxxx, Ph.D., Xxxxxx Xxxx Xx., M.D., Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxxx Xxxxx, M.D., the “Founder Tender and Xxxx Xxxxx, M.D., Ph.D. (each a “Supporting StockholderSupport Agreement”), dated as of June 18, 2023, with J. Xxxxx Xxxxxx. As Collectively, as of July 5June 27, 20222023, the Supporting Stockholders collectively directly or indirectly own beneficially owned approximately 1.0218% of all Shares issued and outstandingthe outstanding Shares. Parent Xxxxx xnd the Purchaser expressly disclaims disclaim beneficial ownership of all Shares covered by each the Tender and Support AgreementAgreements. The Tender and Support Agreement provides Agreements provide that, no later than ten (10) 10 business days after the commencement of the Offer, each the Supporting Stockholder Stockholders will tender into the Offer Offer, and not withdraw, all outstanding Shares Table of Contents each Supporting Stockholder owns of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the outstanding Shares beneficially owned by date of the Tender and Support Agreements or that the Supporting Stockholders acquires record ownership or beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of after such Supporting Stockholder and any Shares subsequently acquired by such Supporting Stockholder date during the Support Period (as defined below) (collectively, the “Subject Shares”). Each Supporting Stockholder agreed not to withdraw its Subject Shares unless its During the period from June 18, 2023 until the termination of the Tender and Support Agreement has been terminated. Each Tender and Agreements (the “Support Agreement also provides thatPeriod”), the Supporting Stockholders have agreed, in connection with any annual or special meeting of the stockholders of the CompanyDICE, however called, including any adjournment or postponement thereof, or any action proposed to be taken by written consentconsent (if permitted at such time) of DICE’s stockholders, to (i) appear at each such meeting or otherwise cause all Subject Shares to be counted as present at the applicable Supporting Stockholder will meeting for purposes of determining a quorum and (ii) be present (in person or by proxy) and vote or cause to be voted, or deliver (or cause to be delivered) a written consent with respect to all of the Subject Shares Shares, (x) against any Acquisition ProposalCompany Takeover Proposal (other than the Merger), (y) against any change in membership of the DICE Board that is not recommended or approved by the DICE Board, and (z) against any other proposal, proposed action, agreement or transaction TABLE OF CONTENTS involving the Company DICE that is intended, or would reasonably be expected to, impede, interfere with, delay, postpone, adversely effectaffect, or prevent the consummation of of, the Offer or Offer, the Merger or the other transactions contemplated by Transactions. During the Merger AgreementSupport Period, each Supporting Stockholder has further agreed not to, directly or indirectly, (i) create or permit to exist any lien, other than certain permitted liens, on any of such Supporting Stockholder’s Subject Shares, (ii) transfer, sell (including short sell), assign, gift, hedge, pledge, grant a participation interest in, hypothecate or otherwise dispose of, or enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Supporting Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any contract with respect to any Transfer of such Supporting Stockholder’s Subject Shares or any interest therein, (iv) grant or permit the grant of any proxy, power of attorney or other authorization or consent in or with respect to any of such Supporting Stockholder’s Subject Shares, (v) deposit or permit the deposit of any of such Supporting Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Supporting Stockholder’s Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the compliance with such Supporting Stockholder’s obligations thereunder in any material respect, otherwise make any representation or warranty of such Supporting Stockholder therein untrue or incorrect, or have the effect of preventing or disabling such Supporting Stockholder from complying with any of their obligations under the Tender and Support Agreements. The restrictions on Transfer are subject to certain customary exceptions. During the Support Period, the Supporting StockholderStockholders, solely in its capacity their capacities as a stockholder stockholders of the CompanyDICE, will not not, and will instruct its Representatives cause their representatives not to to, directly or indirectly: • continue any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to an Acquisition Proposal; • indirectly (i) solicit, initiate or initiate, knowingly facilitate or knowingly encourage (including by way of providing non-public informationinformation or taking any other action) any inquiries, proposals or offers, or the making of any submission or announcement of any inquiry regardinginquiry, or the making of any proposal or offer that, that constitutes or could reasonably be expected to lead to an Acquisition any Company Takeover Proposal; • , (ii) directly or indirectly engage in, continue enter into or otherwise participate in any discussions or negotiations with any person regarding, or furnish to any person any non-public information or afford access to the business, properties, assets, books or records of DICE to, or take any other action to assist, knowingly facilitate or knowingly encourage any effort by any person, in each case in connection withwith or in response to any inquiry, offer or proposal that constitutes, or for the purpose of soliciting or knowingly encouraging or facilitating, an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal any Company Takeover Proposal, (other than solely in response to an unsolicited inquiry to refer such person to the restrictions of the Merger Agreement and this provision of the Tender and Support Agreement so long as the discussion or response is limited to such referral); • iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, purchase agreement, acquisition agreement, option agreement in principle or other similar agreement with respect instrument relating to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Company Takeover Proposal; or • , (iv) knowingly encourage or recommend any other holder of Shares to vote against the Merger or to not tender Shares into the OfferOffer or (vi) resolve or agree to do any of the foregoing. The Tender and Support Agreement will terminate automatically upon Agreements provide that the first to occur Supporting Stockholders’ obligations under the agreements are solely in their respective capacities as stockholders of (a) the termination DICE, and not, if applicable, in such stockholders’ or any of the Merger Agreementtheir affiliates’ capacity as a director, (b) the Effective Timeofficer or employee of DICE, (c) any decrease to the Offer Price, or (d) the termination of and that nothing in the Tender and Support Agreement by written notice from Parent Agreements in any way restricts a director or officer of DICE in the taking of any actions (or failures to such Supporting Stockholderact) in his or her capacity as a director or officer of DICE, or in the exercise of his or her fiduciary duties as a director or officer of DICE.
Appears in 1 contract
Samples: Offer to Purchase (ELI LILLY & Co)
Tender and Support Agreements. The following is a summary of the material provisions of the Tender and Support Agreement Agreements (as described defined below). The following description of the Tender and Support Agreement Agreements is only a summary and is qualified in its entirety by reference to the form of Tender and Support AgreementAgreements, a copy copies of which is are filed as Exhibit Exhibits (d)(2), (d)(3) of and (d)(4) to the Schedule TO and is are incorporated herein by reference. For a complete understanding of the Tender and Support Agreement, you are encouraged to read the full text of the form of Tender and Support Agreement. Concurrently with entering entry into the Merger Agreement, Xxxxxx Xxxxx and Xxxxxxxxx Purchaser entered into a (i) Tender and Support Agreement (as it may be amended from time to time), dated June 22as of October 2, 2022 2023, with Xxx X. XxXxxx and affiliates, (“ii) Tender and Support Agreement”Agreement (as it may be amended from time to time), dated as of October 2, 2023, with Xxxxx Xxxxxxx Xxxxxx and affiliates and (iii) Tender and Support Agreement (as it may be Table of Contents amended from time to time), dated as of October 2, 2023, with each Xxxx X. Xxxxxxxx and affiliates. Collectively, as of Xxxxx XxxxxxxOctober 2, Ph.D., Xxxxxxx Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxxxx, M.D., Xxxx Xxxxxx, PhD., Xxxxxx Xxxxxxxxxx, Ph.D., Xxxxxx Xxxx Xx., M.D., Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxxx Xxxxx, M.D., and Xxxx Xxxxx, M.D., Ph.D. (each a “Supporting Stockholder”). As of July 5, 20222023, the Supporting Stockholders collectively directly or indirectly own beneficially owned approximately 1.0215% of all Shares issued the outstanding Shares. Xxxxx and outstanding. Parent the Purchaser expressly disclaims disclaim beneficial ownership of all Shares covered by each the Tender and Support AgreementAgreements. The Tender and Support Agreement provides Agreements provide that, no later than ten (10) 10 business days after the commencement of the Offer, each the Supporting Stockholder Stockholders will tender into the Offer Offer, and not withdraw, all outstanding Shares (other than POINT stock options that are not exercised and POINT performance stock units that are not settled during the Support Period (as defined below)) each Supporting Stockholder owns of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) as of the outstanding Shares beneficially owned by date of the Tender and Support Agreements or that the Supporting Stockholders acquires record ownership or beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of after such Supporting Stockholder and any Shares subsequently acquired by such Supporting Stockholder date during the Support Period (collectively, the “Subject Shares”). Each Supporting Stockholder agreed not to withdraw its Subject Shares unless its During the period from October 2, 2023 until the termination of the Tender and Support Agreement has been terminated. Each Tender and Agreements (the “Support Agreement also provides thatPeriod”), the Supporting Stockholders have agreed, in connection with any annual or special meeting of the stockholders of the CompanyPOINT, however called, including any adjournment or postponement thereof, or any action proposed to be taken by written consentconsent (if permitted at such time) of POINT’s stockholders, to (i) appear at each such meeting or otherwise cause all Subject Shares to be counted as present at the applicable Supporting Stockholder will meeting for purposes of determining a quorum and (ii) be present (in person or by proxy) and vote or cause to be voted, or deliver (or cause to be delivered) a written consent with respect to all of the Subject Shares Shares, (x) against any Acquisition Company Takeover Proposal, (y) against any change in membership of the POINT Board that is not recommended or approved by the POINT Board, and (z) against any other proposal, proposed action, agreement or transaction TABLE OF CONTENTS involving the Company POINT that is intended, or would reasonably be expected to, impede, interfere with, delay, postpone, adversely effectaffect, or prevent the consummation of of, the Offer or Offer, the Merger or the other transactions contemplated Transactions. For so long as each Tender and Support Agreement has not been validly terminated in accordance with its terms, each Supporting Stockholder irrevocably appoints Lilly (and any person or persons designated by Xxxxx) as its attorney-in-fact and proxy with full power of substitution and resubstitution, to the full extent of such Supporting Stockholder’s voting rights with respect to all such Supporting Stockholder’s Subject Shares (which proxy is irrevocable (and as such will survive and not be affected by the death, incapacity, mental illness or insanity of such Supporting Stockholder) and which appointment is coupled with an interest, including for purposes of Section 212 of the DGCL) to vote (or issue instructions to the record holder to vote), and to execute (or issue instructions to the record holder to execute) written consents with respect to, all such Supporting Stockholder’s Subject Shares solely on the matters described in, and in accordance with the provisions of, each Tender and Support Agreement, if, and only if, the Supporting Stockholder fails to comply with the provisions thereof (such proxy, the “Conditional Proxy”). The Conditional Proxy was given to secure the obligations of such Supporting Stockholder under each Tender and Support Agreement, and in consideration of and as an additional inducement of Lilly and Purchaser to enter into the Merger Agreement, and is irrevocable. The Conditional Proxy will not be terminated by operation of any law or upon the occurrence of any other event other than upon the valid termination of each Tender and Support Agreement in accordance with its terms. Xxxxx may terminate the Conditional Proxy with respect to a Supporting Stockholder at any time in its sole and absolute discretion by written notice provided to such Supporting Stockholder. Such Supporting Stockholder agrees to execute any further agreement or form reasonably necessary or appropriate to confirm and effectuate the grant of the Conditional Proxy contained herein and hereby revokes any proxy previously granted by such Supporting Stockholder with respect to the Subject Shares that covers matters addressed by each Tender and Support Agreement. During the Support Period, each Supporting Stockholder has further agreed not to, directly or indirectly, (i) create or permit to exist any lien, other than certain permitted liens, on any of such Supporting Stockholder’s Subject Shares, (ii) transfer, sell (including short sell), assign, gift, hedge, pledge, grant a participation interest in, hypothecate or otherwise dispose of, or enter into any derivative arrangement with respect to (collectively, Table of Contents “Transfer”), any of such Supporting Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any contract with respect to any Transfer of such Supporting Stockholder’s Subject Shares or any interest therein, (iv) grant or permit the grant of any proxy, power of attorney or other authorization or consent in or with respect to any of such Supporting Stockholder’s Subject Shares, (v) deposit or permit the deposit of any of such Supporting Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Supporting Stockholder’s Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of, and compliance with, such Supporting Stockholder’s obligations thereunder in any material respect, otherwise make any representation or warranty of such Supporting Stockholder therein untrue or incorrect, or have the effect of preventing or disabling such Supporting Stockholder from performing, and complying with, any of their obligations under the Tender and Support Agreements. The restrictions on Transfer are subject to certain customary exceptions. During the Support Period, the Supporting Stockholders, solely in its capacity their capacities as a stockholder stockholders of the CompanyPOINT, will not not, and will instruct its Representatives cause their representatives not to to, directly or indirectly: • continue any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to an Acquisition Proposal; • indirectly (i) solicit, initiate or initiate, knowingly facilitate or knowingly encourage (including by way of providing non-public informationinformation or taking any other action) any inquiries, proposals or offers, or the making of any submission or announcement of any inquiry regardinginquiry, or the making of any proposal or offer that, that constitutes or could reasonably be expected to lead to an Acquisition any Company Takeover Proposal; • , (ii) directly or indirectly engage in, continue enter into or otherwise participate in any discussions or negotiations with any person regarding, or furnish to any person any non-public information or afford access to the business, properties, assets, books or records of POINT to, or take any other action to assist, knowingly facilitate or knowingly encourage any effort by any person, in each case in connection withwith or in response to any inquiry, offer or proposal that constitutes, or for the purpose of soliciting or knowingly encouraging or facilitating, an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal any Company Takeover Proposal, (other than solely in response to an unsolicited inquiry to refer such person to the restrictions of the Merger Agreement and this provision of the Tender and Support Agreement so long as the discussion or response is limited to such referral); • iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, purchase agreement, acquisition agreement, option agreement in principle or other similar agreement with respect instrument relating to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Company Takeover Proposal; or • , (iv) knowingly encourage or recommend any other holder of Shares to vote against the Merger or to not tender Shares into the OfferOffer or (vi) resolve or agree to do any of the foregoing. The Tender and Support Agreements provide that the Supporting Stockholders’ obligations under the agreements are solely in their respective capacities as stockholders of POINT, and not, if applicable, in such stockholders’ or any of their affiliates’ capacity as a director, officer or employee of POINT, and that nothing in the Tender and Support Agreements in any way restricts a director or officer of POINT in the taking of any actions (or failures to act) in his or her capacity as a director or officer of POINT, or in the exercise of his or her fiduciary duties as a director or officer of POINT. Each Tender and Support Agreement will terminate terminates automatically upon the first to occur earliest of (ai) the valid termination of the Merger AgreementAgreement in accordance with its terms, (bii) the Effective Time, (c) any decrease to the Offer Price, or (diii) the termination of the such Tender and Support Agreement by written notice of termination from Parent Lilly to such the applicable Supporting StockholderStockholder(s) or (iv) the date on which any amendment or change to the Merger Agreement or the Offer is effected without the applicable Supporting Stockholders’ consent that decreases the amount, or changes the form, of consideration payable to all stockholders of POINT pursuant to the terms of the Merger Agreement.
Appears in 1 contract
Samples: Offer to Purchase (ELI LILLY & Co)
