Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after the date hereof, Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price per share equal to the Offer Price. The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I. (b) Subject to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. (c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall: (i) amend, modify or waive the Minimum Condition; (ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub in the Offer; (iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f)); (iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice; (v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e)); (vi) change the form of consideration payable in the Offer; (vii) impose any condition to the Offer in addition to the Offer Conditions; (viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or (ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL. (d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”). (e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date. (f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement. (g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 2 contracts
Samples: Merger Agreement (Amplify Snack Brands, INC), Merger Agreement (Hershey Co)
Tender Offer. (a) Unless Provided that this Agreement shall not have previously ------------ been validly terminated in accordance with Article 8IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after five business days of the date hereof, Acquisition Purchaser shall cause Merger Sub shall to commence a tender offer (within the meaning of Rule 14d-2 under the Exchange Act"Offer") the Offer to purchase for cash all of the outstanding Company shares of Common Stock (including any Company Common Stock subject to repurchase rights in favor Stock, par value ----- $1.00 per share, of the Company, including the associated Rights (as defined in Section 6.1(b)) (together, the "Shares") at a price of $22.00 per share equal Share in cash, ------ net to the Offer Price. The date on which Acquisition Sub commences the Offerseller, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (terms and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I A hereto (the “"Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn"). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the initial expiration date of the Offer shall ---------------- be the date twenty business days from and including the date (except the "Commencement ------------ Date") the Offer Documents (as hereinafter defined) are first filed with the ---- Securities and Exchange Commission (the "SEC"). Purchaser and Merger Sub --- expressly reserve the right, in their sole discretion, to waive any condition (other than the extent required Minimum Condition, as defined in the Offer Conditions) and to set forth or permitted pursuant to Section 2.1(e));
(vi) change any other term and condition of the Offer, provided that, -------- unless previously approved by the Company in writing, no provision may be set forth or changed which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer (other than by adding consideration), reduces the maximum number of Shares to be purchased in the Offer;
(vii) impose any condition , or imposes conditions to the Offer in addition to those set forth herein that are materially adverse to holders of the Shares. Merger Sub covenants and agrees that, subject to the terms and conditions of the Offer, including but not limited to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being it will accept for payment and pay for Shares as soon as it is permitted to be effected pursuant to Section 251(h) of do so under applicable law, provided that Merger Sub shall have the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) orright, in the event the Initial Expiration Date has been extended pursuant its sole -------- discretion, to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as followsnotwithstanding the prior satisfaction of the Offer Conditions. It is agreed that the terms and conditions set forth in the Offer, including but not limited to the Offer Conditions, are for the benefit of Purchaser and Merger Sub and may be asserted by Purchaser and Merger Sub regardless of the circumstances giving rise to any such condition.
(b) The Company hereby approves of and consents to the Offer and represents and warrants that: (i) if its Board of Directors, at a meeting duly called and held on the then-scheduled Expiration DateMarch 2, the Minimum Condition 1998, has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one unanimously (1A) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent determined that this Agreement and the Company) in order to permit the satisfaction transactions contemplated hereby, including each of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date Merger (as defined in Section 2.1), are fair to a date later than and in the End Datebest interests of the holders of Shares, (B) approved this Agreement and the transactions contemplated hereby, including each of the Offer and the Merger, and (C) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares to Merger Sub thereunder and approve this Agreement and the transactions contem plated hereby; and (ii) Acquisition Sub shall extend Credit Suisse First Boston (the Offer for "Financial Advisor") has delivered to the minimum period required by applicable Law, interpretation or position Board of Directors of the SEC or Company ----------------- its staff or written opinion that the New York Stock Exchange (“NYSE”) or its staff applicable consideration to the Offer; providedbe received by holders of Shares, howeverother than Purchaser and Merger Sub, that Acquisition Sub shall not be required pursuant to extend each of the Offer and the Expiration Date Merger is fair to such holders from a date later than financial point of view. The Company has been authorized by the End DateFinancial Advisor to permit, subject to prior review and consent by such Financial Advisor (such consent not to be unreasonably withheld), the inclusion of such fairness opinion (or a reference thereto) in a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") -------------- to be filed with the SEC upon commencement of the Offer and in the Proxy Statement referred to in Section 7.3(a). The Company hereby consents to the inclusion in the Offer Documents (as defined in Section 1.1(c)) of the recommendations of the Board of Directors of the Company described herein.
(fc) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock splitPurchaser agrees, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment as to the Offer Price shall provide to Purchase and related Letter of Transmittal (which together constitute the "Offer Documents"), and the --------------- Company agrees, as to the Schedule 14D-9, that such documents shall, in all material respects, comply with the requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the "Exchange -------- Act") and other applicable laws. The Company and its counsel, as to the Offer Documents, and Purchaser and its counsel, as to the Schedule 14D-9, shall be given an opportunity to review such documents a reasonable time prior to their being filed with the SEC. Purchaser, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents or the Schedule 14D-9, as applicable, that shall have become false or misleading in any material respect, and Purchaser and Merger Sub, on the one hand, and the Company, on the other hand, further agree to take all steps necessary to cause the Offer Documents and the Schedule 14D-9, as the case may be, as so corrected to be filed with the SEC and disseminated to holders of Company Common Stock Shares, in each case as and to the same economic effect as contemplated extent required by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its applicable federal securities that is prohibited by the terms of this Agreementlaws.
(gd) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance In connection with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall the Company will cause its transfer agent to furnish promptly to Merger Sub a list, as of a recent date, of the record holders of Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Merger Sub with such additional information (including, but not acquire any shares limited to, updated lists of Company Common Stock pursuant holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Purchaser or Merger Sub or their agents may reasonably request in communicating the Offer to the Offer record and shall cause any depository acting on behalf beneficial holders of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereofShares.
Appears in 2 contracts
Samples: Merger Agreement (Green a P Industries Inc), Merger Agreement (Global Industrial Technologies Inc)
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as As promptly as practicable, but and in any event within not more than the ten later of thirty (1030) days from the date hereof or seven (7) Business Day period commencing on Days following delivery of the first Target Historical Financials and the Target September 30 Financials (1st) Business Day after the date hereof“TO Commencement Date”), Acquisition Sub Parent shall commence (within under the meaning of Rule 14d-2 under the Exchange Act) the Offer an offer to purchase for cash all outstanding shares of the outstanding Company Parent Common Stock (including any Company the “Tender Offer”) for cash equal to their pro rata share of the aggregate amount then on deposit in the Trust Account, less Taxes and interest (the “Tender Consideration”). Parent agrees that no shares of Parent Common Stock held by Parent or Merger Sub will be tendered in the Tender Offer. Unless otherwise agreed to by the Parties, Parent shall use its commercially reasonable efforts (subject to repurchase rights in favor market conditions) to conduct the Tender Offer without stockholder vote pursuant to Rule 13e-4 and Regulation 14E of the CompanyExchange Act (as modified, waived or otherwise agreed to with the SEC) at a price per share equal which regulates issuer tender offers and in compliance with the requirements of Parent’s certificate of incorporation, and will file Tender Offer documents with the SEC. The obligation of Parent to accept for payment shares of Parent Common Stock validly tendered and not validly withdrawn pursuant to the Offer Price. The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Tender Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to Section 2.1(e), as promptly as practicable on the later satisfaction of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I the Tender Offer. Unless agreed to by the Parties or required by the SEC, no material change (including changing the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant amount per share offered to the shareholders) may be made to the Tender Offer (and not validly withdrawn)which imposes additional conditions to the Tender Offer or is inconsistent with this Section 4.3. The obligation of Acquisition Sub Parties hereby agree to irrevocably accept for purchase Company Common Stock tendered pursuant negotiate in good faith to amend the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub conditions set forth in the Offer;
(iii) reduce the Tender Offer Price (except to the extent reflect any changes that may be reasonably required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to as a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date result of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance discussions with the terms of this Agreement, the SEC or its staff. The Tender Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Tender Offer (the “Initial Expiration Date”) or). Notwithstanding the foregoing, and subject to the provisions of Section 6.1, if, at any scheduled expiration of the Tender Offer, the conditions set forth in the event Tender Offer, have not been satisfied or waived, Parent may extend the Tender Offer for one or more consecutive periods beyond the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement(the Initial Expiration Date as extended, the date and time to which the Offer has been so extended (the “Expiration DateTime”).
(e) . Notwithstanding anything to the contrary contained hereinforegoing, but subject to Parent, without the Parties’ respective termination rights under Section 8.1consent of Target, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, may extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Tender Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position any Law of the SEC or its staff SEC, or the New York Stock Exchange (“NYSE”) or its staff thereof, applicable to the Tender Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 2 contracts
Samples: Escrow Agreement (SCG Financial Acquisition Corp.), Merger Agreement (SCG Financial Acquisition Corp.)
Tender Offer. (a) Unless Provided that this Agreement shall not have previously ------------ been validly terminated in accordance with Article 8IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after five business days of the date hereof, Acquisition hereof Purchaser shall cause Merger Sub shall to commence a tender offer (within the meaning of Rule 14d-2 under the Exchange Act"Offer") the Offer to purchase for cash all of the outstanding Company shares of Common Stock (including any Company Common Stock subject to repurchase rights in favor Stock, par value ----- $.001 per share, of the Company, including the associated Rights (as defined in Section 6.1(b)) (together, the "Shares") at a price of $28.50 per share equal Share in cash, ------ net to the Offer Price. The date on which Acquisition Sub commences the Offerseller, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (terms and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I A hereto (the “"Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn"). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to initial expiration date (the "Initial ---------------- ------- Expiration Date") shall be the date twenty business days from the date (the --------------- "Commencement Date") the Offer shall be subject only to Documents (as hereinafter defined) are first ------------------ filed with the satisfaction or waiver Securities and Exchange Commission (the "SEC"), including the --- Commencement Date as the first business day of each of the Offer Conditions (such period. Purchaser and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Merger Sub expressly reserve the right right, in their sole discretion, to waive any condition to (other than the Minimum Condition, as defined in the Offer (Conditions) and to the extent permitted under applicable Laws) set forth or modify change any of the other terms and conditions of the Offer, except provided -------- that, without unless previously approved by the prior written consent of Company in writing, no provision may be set forth or changed which decreases the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub price per Share payable in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change changes the form of consideration payable in the Offer (other than by adding consideration), reduces the maximum number of Shares to be purchased in the Offer;
(vii) impose any condition , or imposes conditions to the Offer in addition to those set forth herein that are materially adverse to holders of the Shares. Merger Sub covenants and agrees that, subject to the terms and conditions of the Offer, including but not limited to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being it will accept for payment and pay for Shares as soon as it is permitted to be effected pursuant to Section 251(h) of do so under applicable law, provided that Merger -------- Sub shall have the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) orright, in the event the Initial Expiration Date has been extended pursuant its sole discretion, to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time notwithstanding the prior satisfaction of the Offer Conditions to a date not beyond the fifth business day following the satisfaction of all of the Offer Conditions if more than 90% of the outstanding Shares (on a fully diluted basis) have not been duly tendered (exclusive of Shares tendered by guaranteed delivery) and not withdrawn. Purchaser agrees that, unless it is permitted to terminate this Agreement pursuant to Article IX, it can terminate the Offer only on a scheduled expiration date. Purchaser further agrees that: (A) in the event that it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in paragraphs (a), (c), (d) or (f) of the Offer Conditions to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, extend the Offer until the earlier of (1) such time as followssuch condition is or conditions are satisfied or waived and (2) the date chosen by the Company which shall not be later than (x) September 15, 1997 or (y) the earliest date on which the Company reasonably believes such condition or conditions will be satisfied; provided that, if such condition is not or -------- conditions are not satisfied by any date chosen by the Company pursuant to this clause (y), the Company may request further extensions of the Offer not beyond September 15, 1997; and (B) it shall, at the request of the Company made in writing at least one business day prior to the Initial Expiration Date (which request may be made by the Company only on one occasion), extend the Offer for up to five business days from such Initial Expiration Date. It is agreed that the terms and conditions set forth in the Offer, including but not limited to the Offer Conditions, are for the benefit of Purchaser and Merger Sub and may be asserted by Purchaser and Merger Sub regardless of the circumstances giving rise to any such condition.
(b) The Company hereby approves of and consents to the Offer and represents and warrants that: (i) if its Board of Directors, at a meeting duly called and held on the then-scheduled Expiration DateJuly 23, the Minimum Condition 1997, has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one unanimously (1A) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent determined that this Agreement and the Company) in order to permit the satisfaction transactions contemplated hereby, including each of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date Merger (as defined in Section 2.1), are fair to a date later than and in the End Datebest interests of the holders of Shares, (B) approved this Agreement and the transactions contemplated hereby, including each of the Offer and the Merger, and (C) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares to Merger Sub thereunder and approve this Agreement and the transactions contemplated hereby; and (ii) Acquisition Sub shall extend Xxxxxx Xxxxxxx & Co. Incorporated (the Offer for "Financial Advisor") has delivered to the minimum period required by applicable Law, interpretation or position Board of Directors ----------------- of the SEC or Company its staff or written opinion that the New York Stock Exchange (“NYSE”) or its staff applicable consideration to the Offer; providedbe received by holders of Shares, howeverother than Purchaser and Merger Sub, that Acquisition Sub shall not be required pursuant to extend each of the Offer and the Expiration Date Merger is fair to such holders from a financial point of view.
(c) As soon as reasonably practicable on the date the Offer is commenced, Purchaser shall file a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer with the SEC. The Schedule 14D-1 -------------- shall contain an Offer to Purchase and forms of the related letter of transmittal (which Schedule 14D-1, Offer to Purchase and other related documents, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). Not later than the End Datefifth --------------- business day after the date hereof, the Company will file a Solicitation Statement on Schedule 14D-9 (the "Schedule 14D-9") with the SEC. Purchaser -------------- agrees, as to the Offer Documents, and the Company agrees, as to the Schedule 14D-9, that such documents shall, in all material respects, comply with the requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the "Exchange Act") and other applicable laws. The ------------ Company and its counsel, as to the Offer Documents, and Purchaser and its counsel, as to the Schedule 14D-9, shall be given an opportunity to review such documents prior to their being filed with the SEC. Purchaser, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents or the Schedule 14D-9 that shall have become false or misleading in any material respect, and Purchaser and Merger Sub, on the one hand, and the Company, on the other hand, further agree to take all steps necessary to cause the Offer Documents and the Schedule 14D-9, as the case may be, as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.
(fd) In connection with the Offer, the Company will cause its transfer agent to furnish promptly to Merger Sub a list, as of a recent date, of the record holders of Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Merger Sub with such additional information (including, but not limited to, updated lists of holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Purchaser or Merger Sub or their agents may reasonably request in communicating the Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Timerecord and beneficial holders of Shares. Subject to the requirements of law, and except for such adjustment steps as are necessary to disseminate the Offer Price shall provide Documents and any other documents necessary to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw consummate the Offer prior to and the then scheduled Expiration Date unless Merger, Purchaser and each of its affiliates and associates shall hold in confidence the information contained in any of such lists, labels or additional information and, if this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant terminated, shall promptly deliver to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours Company all copies of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, information then in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereoftheir possession.
Appears in 2 contracts
Samples: Merger Agreement (Nellcor Puritan Bennett Inc), Merger Agreement (Mallinckrodt Inc /Mo)
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as As promptly as practicable, but in any no event within the ten (10) Business Day period commencing on the first (1st) Business Day later than 10 days after the date hereofpublic announcement of the execution of this Agreement, Acquisition Merger Sub shall commence will, and Parent will cause Merger Sub to, offer to purchase (within the meaning “Offer”) each outstanding share of Rule 14d-2 under the Exchange Act) common stock, $0.001 par value per share (the “Common Stock”), of the Company tendered pursuant to the Offer at a price of $19.05 per share, net to the seller in cash (the “Offer Consideration”), and to cause the Offer to purchase for cash all remain open until the close of business on the twentieth business day after the commencement of the outstanding Company Offer (the “Expiration Date”). The obligations of Merger Sub and Parent to consummate the Offer and to accept for payment and purchase the Common Stock (including any Company Common Stock subject to repurchase rights tendered in favor of the Company) at a price per share equal to the Offer Price. The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall will be subject only to the conditions set forth on Annex I.
in Schedule 1.01(a) (bOffer Conditions) Subject to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived). At the Company’s request, Acquisition Merger Sub shall (will, and Parent shall will cause Acquisition Merger Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer from time to time for up to an aggregate of ten business days following the Expiration Date if the Minimum Condition (except as defined in the Offer Conditions) is not fulfilled prior to 12:00 p.m. on the extent Expiration Date; provided, however, in no event shall Merger Sub be required or permitted pursuant to Section 2.1(e));
(vi) extend the Offer beyond March 31, 2005. Merger Sub will not, and Parent will cause Merger Sub not to, decrease the Offer Consideration, change the form of consideration payable in the Offer;
(vii) impose any condition , reduce the number of shares of Common Stock subject to the Offer in addition to Offer, change the Offer Conditions;
(viii) amend, modify impose additional conditions to its obligation to consummate the Offer and to accept for payment and purchase shares of Common Stock tendered in the Offer, waive the Minimum Condition, or supplement change any of the other terms of the Offer in a manner adverse to the holders of the Common Stock, except that Merger Sub may extend the Expiration Date to the extent required by any manner adversely affectingapplicable law, statute, rule, regulation, code, order, judgment, injunction, writ, decree, license or that could reasonably be expected to have an adverse effect on, permit of any Governmental Authority (“Applicable Law”) or if any of the holders Offer Conditions are not satisfied. Subject to the terms and conditions of Company the Offer and this Agreement, Merger Sub will, and Parent will cause Merger Sub to, accept for payment, and pay for, all shares of Common Stock; Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer promptly after the expiration of the Offer. Without the prior written consent of the Company, Merger Sub will not, and Parent will cause Merger Sub not to, accept for payment, or pay for, any shares of Common Stock so tendered unless the Minimum Condition will have been satisfied. In addition, if, at the Expiration Date, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Parent) but the number of shares of Common Stock validly tendered and not withdrawn pursuant to the Offer constitutes less than 90% of the shares of Common Stock then outstanding, without the consent of the Company, Parent and Merger Sub shall have the right, subject to Applicable Law, to provide for a “subsequent offering period” (as contemplated by Rule 14d-11 under the Exchange Act) for up to 20 business days after Merger Sub’s acceptance for payment of the shares of Common Stock then tendered and not withdrawn pursuant to the Offer, in which event Parent shall (1) give the required notice of such subsequent offering period and (2) immediately accept for payment, and promptly pay the Offer Consideration for, all shares of Common Stock tendered and not withdrawn as of such Expiration Date.
(ixb) take On the date of the commencement of the Offer, Merger Sub and Parent will file with the Securities and Exchange Commission (the “SEC”) their Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, and including all exhibits, the “Offer Documents”). Merger Sub and Parent will give the Company and its counsel a reasonable opportunity to review and comment on the Offer Documents prior to their being filed with the SEC and disseminated to the Company’s stockholders. Parent and Merger Sub agree that the Offer Documents will comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, and the Offer Documents, on the date first published, sent or given to the Company’s stockholders, will not contain any action (untrue statement of a material fact or fail omit to take state any action) 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 would result no representation or warranty is made by Parent or Merger Sub with respect to information supplied by the Company in writing specifically for inclusion or incorporation by reference in the Merger not being permitted Offer Documents. The Company agrees that any such information supplied by the Company that is included in the Offer Documents will not, at the time such information is furnished to Parent, contain an untrue statement of a material fact or omit to state any material fact required to be effected stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Sub, and the Company will promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information becomes false or misleading in any material respect, and Parent and Merger Sub will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company’s stockholders, in each case as and to the extent required by the Exchange Act. Parent and Merger Sub will provide the Company and its counsel with copies of any written comments, and will summarize any oral comments, that Parent, Merger Sub, or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) As promptly as practicable, but in no event later than the date on which Parent notifies the Company that the Offer Documents initially are to be filed with the SEC, the Company will file its Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with all supplements or amendments thereto, and including all exhibits, the “Schedule 14D-9”), which will include a recommendation by the Company’s Board of Directors that the Company’s stockholders accept the Offer and tender their Common Stock pursuant to Section 251(h) the Offer. The Company agrees that the Schedule 14D-9 will comply as to form in all material respects with the requirements of the DGCLExchange Act and the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, will 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 information supplied by Parent or Merger Sub in writing specifically for inclusion in the Schedule 14D-9. Parent and Merger Sub agree that any such information supplied by Parent and Merger Sub that is included in the Schedule 14D-9 will not, at the time such information is furnished to the Company, contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Company, Parent, and Merger Sub will promptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information becomes false or misleading in any material respect, and the Company will take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the Company’s stockholders, in each case as and to the extent required by the Exchange Act. Parent and its counsel will be given reasonable opportunity to review and comment on the Schedule 14D-9 prior to its filing with the SEC and dissemination to stockholders of the Company. The Company will provide Parent and its counsel with copies of any written comments, and will summarize any oral comments, that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company’s Board of Directors has resolved to recommend that the Company’s stockholders accept the Offer and tender their Common Stock pursuant to the Offer.
(d) Unless extended If requested by Parent or Merger Sub, the Company will, promptly following the purchase by Merger Sub pursuant to and in accordance the Offer of that number of shares of Common Stock which, when aggregated with the terms shares of this AgreementCommon Stock then owned by Parent and any of its affiliates, represents at least a majority of the shares of Common Stock then outstanding on a fully diluted basis, take all reasonable actions necessary to cause persons designated by Merger Sub to become directors of the Company so that the total number of directors so designated equals the product, rounded up to the next whole number, of (i) the total number of directors of the Company multiplied by (ii) the ratio of the number of shares of Common Stock beneficially owned by Merger Sub or its affiliates to the number of shares of Common Stock then outstanding. In furtherance thereof, the Offer shall expire Company will, if practicable and as is necessary, amend the Company’s bylaws to increase the size of its Board of Directors, or use reasonable efforts to secure the resignation of directors, or both, to permit that number of Merger Sub’s designees to be elected to the Company’s Board of Directors; provided that, prior to the Effective Time, the Company’s Board of Directors will always have at midnight least two members who are currently directors of the Company, except to the extent that no such individuals wish to be directors (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning “Continuing Directors”). The Company’s obligations to appoint designees to its Board of Rule 14d-2 under the Exchange ActDirectors will be subject to Section 14(f) of the Offer Exchange Act and Rule 14f-1 promulgated thereunder. Parent and Merger Sub will supply to the Company and will be solely responsible for any information with respect to either of them and their nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. The Company will promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this
Section 1.01 and (provided Merger Sub has furnished the “Initial Expiration Date”) or, Company on a timely basis with all information required to be included in the event Information Statement with respect to Merger Sub’s designees) will include in the Initial Expiration Date has been extended pursuant Schedule 14D-9 such information with respect to the Company and in accordance with this Agreement, the date its officers and time to which the Offer has been so extended (the “Expiration Date”)directors as is required under Section 14(f) and Rule 14f-1.
(e) Notwithstanding anything Following the election or appointment of Merger Sub’s designees pursuant to Section 1.01(d), any amendment to this Agreement, any termination of this Agreement by the contrary contained hereinCompany, but subject to any extension by the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend Company of the Offer from time to time as follows: (i) if on for the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or performance of any of the obligations of Merger Sub or Parent under this Agreement (except as expressly permitted hereunder), any recommendation to stockholders or any modification or withdrawal of any such recommendation, any retention of counsel and other Offer Conditions has not been satisfiedadvisors in connection with the transactions contemplated hereby, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments any waiver of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and any of the Company) in order to permit ’s rights under this Agreement will require the satisfaction concurrence of such Offer Conditions (subject to a majority of the Continuing Directors, unless no individuals who are currently directors of the Company are then serving as directors. In addition, the Continuing Directors will have the right of Parent or Acquisition Sub to waive any Offer Conditionretain, other than at the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position expense of the SEC or its staff or Company, one separate counsel to represent them in connection with the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Datetransactions contemplated hereby.
(f) The Offer Price shall be adjusted appropriately parties will cooperate with each other, including by furnishing any necessary information and proportionately making any filings required by Applicable Law, to reflect ensure that the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as matters contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement1.01 are consummated as promptly as practicable.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Education Lending Group Inc), Merger Agreement (Cit Group Inc)
Tender Offer. (a) Unless this Agreement Infinity World agrees that the Offer Documents shall have previously been validly terminated comply as to form in accordance all material respects with Article 8the requirements of Exchange Act and, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after date filed with the SEC and on the date hereoffirst published, Acquisition Sub shall commence (within sent or given to the meaning of Rule 14d-2 under the Exchange Act) Company’s stockholders, the Offer Documents shall not contain any untrue statement of a material fact or omit to purchase for cash all state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the outstanding Company Common Stock (including circumstances under which they were made, not misleading. Infinity World agrees promptly to correct any Company Common Stock subject to repurchase rights information in favor of the Company) at a price per share equal to the Offer Price. The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (Documents if and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) that such information shall have become false or modify misleading in any of material respect, and Infinity World further agrees to take all steps necessary to amend or supplement the terms of Offer Documents and to cause the OfferOffer Documents, except thatas so amended or supplemented, without to be filed with the prior written consent of SEC and disseminated to the Company’s stockholders, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub in the Offer;
(iii) reduce the Offer Price (except each case as and to the extent required pursuant by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to Section 2.1(f));
(iv) increase review the Offer Price, except in response Documents and all amendments and supplements thereto prior to a Change in Recommendation their filing with the SEC or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date dissemination to stockholders of the Offer (except Company. Infinity World agrees to provide the extent required Company and its counsel in writing with any comments the Infinity World Group or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer its counsel may receive from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or with respect to the New York Stock Exchange Tender Offer promptly after the receipt of such comments.
(b) Within ten (10) business days of the Infinity Group files its Tender Offer Statement on Schedule TO with respect to the Tender Offer and other Offer Documents with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Tender Offer (such Schedule 14D-9, as amended from time to time, the “NYSESchedule 14D-9”) containing its recommendation (in which the Company may remain “neutral” with respect to the Tender Offer, but in no event shall the Company recommend rejection of the Tender Offer or take any position adverse to the Tender Offer) and shall cause the Schedule 14D-9 to be published or mailed to the stockholders of the Company. The Company agrees that the Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Securities Exchange, and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, such Schedule 14D-9 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 is made by the Company with respect to information supplied by the Infinity Group specifically for inclusion in the Schedule 14D-9. The Company agrees promptly to correct any information provided by it for use in the Schedule 14D-9 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 amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the Company’s stockholders, in each case as and to the extent required by applicable federal securities laws. The Infinity Group and its counsel shall be given a reasonable opportunity to review the Schedule 14D-9 and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. The Company agrees to provide the Infinity Group and its counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or the Schedule 14D-9 promptly after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours receipt of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereofcomments.
Appears in 2 contracts
Samples: Company Stock Purchase and Support Agreement (Dubai World), Company Stock Purchase and Support Agreement (MGM Mirage)
Tender Offer. (a) Unless Provided that this Agreement shall not have previously been validly terminated in accordance with Article 8IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing and the other conditions to the Offer specified in Annex A shall have been satisfied (such conditions, as promptly as practicabletogether with the nonoccurrence of such events, but in any event the "Offer Conditions"), within the ten (10) Business Day period commencing on the first (1st) Business Day five business days after the date hereofpublic announcement by Purchaser of this Agreement, Acquisition Purchaser shall cause Merger Sub shall to commence a tender offer (within the meaning of Rule 14d-2 under the Exchange Act"Offer") the Offer to purchase for cash all of the outstanding Company shares of Common Stock (including any Company Common Stock subject to repurchase rights in favor Stock, par value $.25 per 2 share, of the Company, including the associated Rights (as defined in Section 6.1(b)) (together, the "Shares") at a price of $12.00 per share equal Share in cash, net to the Offer Price. The date on which Acquisition Sub commences seller (but subject to any applicable Tax (as defined in Section 6.1(o)) withholdings) (the Offer"Merger Consideration"), within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(bOffer Conditions, and to comply with Rule 14e-1(c) Subject to Section 2.1(e)under the Securities Exchange Act of 1934, as promptly as practicable on amended (including the later rules and regulations thereunder, the "Exchange Act"). The initial expiration date of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (the "Initial Expiration Date") shall be the date that is twenty business days from the date (the "Commencement Date") the Offer Documents (as hereinafter defined) are first filed with the Securities and not validly withdrawnExchange Commission (the "SEC"), and (ii) including the earliest date Commencement Date as the first business day of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition such period. Merger Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except thatnot, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub price per Share offered in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration offered or payable in the Offer;
(vii) , decrease the number of Shares sought in the Offer, change the conditions to the Offer in any manner adverse to the holders of Shares, impose any condition conditions to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement amend any of the terms term of the Offer in any manner adversely affecting, or that could reasonably be expected adverse to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (Shares or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, waive the Minimum Condition has not been satisfied or any of (as defined in Annex A). Purchaser and Merger Sub expressly reserve the other Offer Conditions has not been satisfiedright, or waived by Parent or Acquisition Sub if permitted hereunderin their sole discretion, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, condition (other than the Minimum Condition, as defined in the Offer Conditions). It is agreed that the terms and conditions set forth in the Offer, including but not limited to the Offer Conditions, are for the benefit of Purchaser and Merger Sub and may be asserted by Purchaser and Merger Sub regardless of the circumstances giving rise to any such condition.
(b) The Company hereby approves of and consents to the Offer and represents and warrants that: (i) its Board of Directors, at a meeting duly called and held on June 4, 1999, has unanimously (A) determined that this Agreement and the transactions contemplated by this Agreement, including each of the Offer and the Merger (as defined in Section 2.1), are fair to and in the best interests of the holders of Shares, (B) approved this Agreement and the transactions contemplated hereby, including each of the Offer and the Merger, and (C) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares to Merger Sub thereunder and approve this Agreement and the transactions contemplated hereby; and (ii) Hambxxxxx & Xuisx XXX and Duff & Phelxx, XXC (collectively, the "Financial Advisors") have delivered
(c) As soon as reasonably practicable on the date the Offer is commenced, Purchaser shall file a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer with the SEC. The Schedule 14D-1 shall contain an Offer to Purchase and forms of the related letter of transmittal and other related documents (which Schedule 14D-1, Offer to Purchase, letter of transmittal and other related documents, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Company's Board of Directors shall recommend acceptance of the Offer to its stockholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") to be filed by the Company with the SEC on the date the Offer is commenced; provided, however, that Acquisition Sub if the Company's Board of Directors determines consistent with its fiduciary duties to amend or withdraw such recommendation, such amendment or withdrawal shall not be required constitute a breach of this Agreement. Purchaser agrees, as to extend the Offer Documents, and the Expiration Date Company agrees, as to a date later than the End Date; Schedule 14D-9, that such documents shall, in all material respects, comply with the requirements of the Exchange Act and (ii) Acquisition Sub shall extend other applicable laws. The Company and its counsel, as to the Offer Documents, and Purchaser and its counsel, as to the Schedule 14D-9, shall be given an opportunity to review such documents prior to their being filed with the SEC. Purchaser, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the minimum period Offer Documents or the Schedule 14D-9 that shall have become false or misleading in any material respect, and Purchaser and Merger Sub, on the one hand, and the Company, on the other hand, further agree to take all steps necessary to cause the Offer Documents and the Schedule 14D-9, as the case may be, as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Datefederal securities laws.
(fd) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change In connection with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of the Company Common Stock pursuant will cause its transfer agent to the Offer and shall cause any depository acting on behalf of Acquisition Sub furnish to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.Merger Sub,
Appears in 2 contracts
Samples: Merger Agreement (Solvay S a /Adr/), Merger Agreement (Unimed Pharmaceuticals Inc)
Tender Offer. (a) Unless Provided that this Agreement shall not have been previously been validly terminated in accordance with Article 8Section 7, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day business days after the date hereofof this Agreement (unless the Company is not prepared to file the Schedule 14D-9 with the SEC on the same day that Parent and Acquisition Sub are prepared to commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer, in which event Parent and Acquisition Sub shall not be required to commence the Offer until the Company is prepared to file the Schedule 14D-9 with the SEC), Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) Shares, at a price per share Company Share equal to the Offer PricePer Share Amount (subject to the terms of Section 1.1(f)). (The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase payment Company Common Stock Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the conditions set forth in Annex I (the “Offer Conditions Conditions”) (and shall not be subject to any other conditions). As promptly as possible after .
(b) Subject to the irrevocable acceptance terms and conditions of this Agreement, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for purchase of any shares of payment and pay for all Company Common Stock Shares tendered pursuant to the Offer, Acquisition Sub shall pay for all shares Offer (and not validly withdrawn) as promptly as practicable after the expiration date of the Offer (as it may be extended pursuant to Section 1.1(d)). The Per Share Amount payable in respect of each Company Common Stock Share validly tendered and not properly withdrawn pursuant to the OfferOffer shall be paid net to the holder thereof in cash, subject to Section 1.1(g).
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive increase the Per Share Amount or to make any condition to the Offer (to the extent permitted under applicable Laws) or modify any of other changes in the terms and conditions of the Offer; provided, except thathowever, without that unless previously approved by the prior written consent of the CompanyCompany in writing, neither Parent nor Acquisition Sub shall:
(i) amend, modify change or waive the Minimum ConditionCondition (as defined in Annex I);
(ii) decrease the number of shares of Company Common Stock Shares sought to be purchased by Acquisition Sub in the Offer;
(iii) subject to Section 1.1(f), reduce the Offer Price (except to the extent required pursuant to Section 2.1(f))Per Share Amount;
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted other than pursuant to and in accordance with Section 2.1(e1.1(d));
(viv) change the form of consideration payable in the Offer;
(viivi) impose any condition to the Offer in addition to the Offer Conditions;; or
(viiivii) amend, modify or supplement any the conditions to the Offer set forth in Annex I hereto so as to broaden the scope of such conditions to the Offer or otherwise in a manner that materially and adversely affects the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the conditions on which holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result Shares may participate in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCLOffer.
(d) Unless extended pursuant Subject to and in accordance with the terms and conditions of this AgreementAgreement and the Offer, the Offer shall expire at midnight (New York City midnight, Eastern time) , on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule Section 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of after the Offer (the “Initial Expiration Commencement Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required notwithstanding the foregoing or anything to extend the Offer and the Expiration Date to a date later than the End Date; and contrary set forth in this Agreement, (iii) Acquisition Sub shall extend the Offer for the minimum any period required by applicable Lawany rule, regulation, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff Nasdaq that is applicable to the Offer, (ii) in the event that any of the conditions to the Offer, including the Minimum Condition and the other conditions set forth on Annex I hereto, are not satisfied or waived as of any then scheduled expiration date of the Offer, Acquisition Sub shall, at the request of the Company or may, at its option, extend the Offer for one (1) successive ten (10) Business Day period in order to permit the satisfaction of such conditions to the Offer, after which ten (10) Business Day period, Acquisition Sub may (but shall not be required to) extend the Offer for one (1) or more successive extension periods of ten (10) Business Days each in order to permit the satisfaction of the conditions to the Offer; (iii) in the event that the condition to the Offer set forth in clause 2 of Annex I hereto is not satisfied or waived as of any then scheduled expiration date of the Offer, but all of the other conditions to the Offer set forth on Annex I hereto (other than the condition to the Offer set forth in clause 3 of Annex I hereto, and other than the condition set forth in clause 4(e)(ii) of Annex I hereto to the extent arising out of the same group of facts and circumstances that have led to the failure of the condition to the Offer set forth in clause 2 of Annex I hereto to be satisfied) shall have been satisfied or waived on or prior to such time, then Acquisition Sub shall extend the Offer for successive ten (10) Business Day periods each in order to permit the satisfaction of such condition to the Offer; (iv) in the event that (A) the Minimum Condition has been satisfied, (B) there is a breach of a covenant of the Company or an inaccuracy in a representation or warranty of the Company, in either case such that one or more of the conditions set forth in clause 4(a) or clause 4(b) of Annex I hereto have not been satisfied or waived as of any then scheduled expiration date of the Offer and (C) the breach or inaccuracy is capable of being cured within twenty (20) calendar days after delivery of written notice from Parent to the Company of such breach or inaccuracy, then, Acquisition Sub shall, at the request of the Company, extend the Offer for one (1) or more successive extension periods of up to ten (10) Business Days each in order to permit the satisfaction of such conditions to the Offer, with the last such extension period ending not earlier than the date on which Parent would be entitled to terminate this Agreement pursuant to Section 7.1(f)(i) on account of such breach or inaccuracy, and (v) in the event that all of the conditions to the Offer set forth in Annex I, except the Minimum Condition, are satisfied or waived as of any then scheduled expiration date of the Offer, Acquisition Sub shall, at the request of the Company or may, at its option, extend the Offer for one (1) successive ten (10) Business Day period in order to permit the satisfaction of the Minimum Condition, after which ten (10) Business Day period, Acquisition Sub may (but shall not be required to) extend the Offer for one (1) or more successive extension periods of ten (10) Business Days each in order to permit the satisfaction of the Minimum Condition; provided, however, that notwithstanding the foregoing clauses (ii) - (v) of this Section 1.1(d), inclusive, in no event shall Acquisition Sub shall not be required to extend the Offer beyond the Termination Date; and provided further, that the Expiration Date to a date later than the End Date.
foregoing clauses (fii) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect - (v) of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stockthis Section 1.1(d), reorganizationinclusive, recapitalizationshall not be deemed to impair, reclassification, combination, exchange limit or otherwise restrict in any manner the right of shares Parent or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms of Section 7 hereof.
(e) Acquisition Sub may (but shall not be required to), in its discretion, elect to provide for a subsequent offering period in accordance with Rule 14d-11 under the Exchange Act of not less than three (3) nor more than twenty (20) Business Days, which subsequent offering period shall commence immediately following the Acceptance Time. Subject to the terms and conditions of this Agreement and the Offer, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (accept for payment, and in any event within twenty-four (24) hours of such termination)pay for, irrevocably all Company Shares validly tendered and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock withdrawn pursuant to the Offer as so extended by such subsequent offering period, as promptly as practicable after any such Company Shares are tendered during such subsequent offering period. The Per Share Amount payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer, as so extended by such subsequent offering period, shall cause be paid net to the holder thereof in cash, subject to reduction only for any depository acting on behalf applicable U.S. federal withholding or back-up withholding or other Taxes payable by such holder.
(f) If, between the date of this Agreement and the Acceptance Time, the outstanding Company Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Per Share Amount shall be adjusted to the extent appropriate.
(g) Each of Acquisition Sub Sub, Parent and the depositary for the Offer shall be entitled to return, in accordance with applicable Law, all tendered shares of Company Common Stock deduct and withhold from any amounts payable pursuant to the registered holders thereofOffer such amounts as are required to be deducted or withheld therefrom under U.S. federal or state, local or non-U.S. law. To the extent that such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
Appears in 2 contracts
Samples: Merger Agreement (Simtek Corp), Merger Agreement (Cypress Semiconductor Corp /De/)
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after the date hereof, Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash (i) all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price per share equal to the Common Stock Offer Price and (ii) all of the outstanding Company Series A Preferred Stock at a price per share equal to the Preferred Stock Offer Price. The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.”
(b) Subject to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock and Company Series A Preferred Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase payment all Company Common Stock and Company Series A Preferred Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase payment Company Common Stock and Company Series A Preferred Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase payment of any shares of Company Common Stock and Company Series A Preferred Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of such Company Common Stock validly tendered and not properly withdrawn pursuant to the OfferCompany Series A Preferred Stock.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right (x) to increase the Common Stock Offer Price or Preferred Stock Offer Price and (y) to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify change or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock and Company Series A Preferred Stock sought to be purchased by Acquisition Sub in the Offer;
(iii) reduce the Common Stock Offer Price (except to the extent required pursuant to Section 2.1(f))or Preferred Stock Offer Price;
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(viv) change the form of consideration payable in the Offer;
(viivi) impose any condition to the Offer in addition to the Offer Conditions;
(viiivii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock or Company Series A Preferred Stock; or
(ixviii) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at the later of (i) midnight (New York City time) on the date that is twenty (20) business days Business Days (for this purpose purpose, calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer or (ii) 5:00 p.m. (New York City Time) on December 18, 2017 (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer shorter period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York NASDAQ Stock Exchange Market (“NYSENASDAQ”) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date.
(f) The Upon the terms and subject to the conditions of this Agreement, the Common Stock Offer Price and Preferred Stock Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock or Company Series A Preferred Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Common Stock Offer Price and Preferred Stock Offer Price shall provide to the holders of Company Common Stock and Company Series A Preferred Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is validly terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such terminationtermination or the next Business Day, if terminated on a non-Business Day), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock or Company Series A Preferred Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock and Company Series A Preferred Stock to the registered holders thereof.
Appears in 2 contracts
Samples: Merger Agreement (Franklin UK Bidco LTD), Merger Agreement (Planet Payment Inc)
Tender Offer. (a) Unless this Agreement Parent shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in the option (the "Tender Offer Option") at any event within the ten (10) Business Day period commencing on the first (1st) Business Day after time prior to the date hereof, Acquisition the Proxy Statement is first mailed to the stockholders of the Company to cause Merger Sub shall to (A) commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer (the Offer "Offer") to purchase for cash any and all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price per share equal to the Merger Consideration, net to the selling stockholder in cash and (B) after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Price. The date Statement on which Acquisition Sub commences Schedule TO (the Offer"Schedule TO") and all other necessary documents with the SEC (collectively, within the meaning of "Offer Documents"), make all deliveries, mailings and telephonic notices required by Rule 14d-2 14d-3 under the Exchange Act, is referred to as and publish, send or give the “disclosure required by Rule 14d-6 under the Exchange Act by complying with the dissemination requirements of Rule 14d-4 under the Exchange Act in each case in connection with the Offer Commencement Date.” Documents. The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject condition that there shall be validly tendered in accordance with the terms of the Offer, prior to Section 2.1(e)the expiration date of the Offer and not withdrawn, as promptly as practicable on the later a number of (i) the earliest date as shares of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant that, together with the shares of Company Common Stock then owned by Parent and/or Merger Sub or any other Subsidiary of Parent, represents at least a majority of the shares of Company Common Stock outstanding on a fully-diluted basis (the "Minimum Condition") and to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the other conditions set forth in Annex I hereto. Merger Sub expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer, provided that without the prior written consent of the Company, (i) the “Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid, decreases the price per share of Company Common Stock or the number of shares of Company Common Stock sought in the Offer Conditions”or imposes conditions to the Offer in addition to those set forth in Annex I and (iii) no other change may be made to any term of the Offer in any manner adverse to the holders of the shares of Company Common Stock. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived, Acquisition until such conditions are satisfied or waived or (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable law. The Offer shall remain open until the date that is twenty (20) Business Days after the commencement of the Offer (the "Expiration Date"), unless Parent shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the terms of this Agreement or as may be required by applicable law, in which event, the term Expiration Date shall mean the latest time and date as the Offer, as so extended, may expire. If, at any Expiration Date, any of the conditions to the Offer are not satisfied or waived by Parent, Parent may, but shall not be required to, extend the Offer. Notwithstanding the foregoing, Parent and Merger Sub agree that Merger Sub shall from time to time extend the Offer, if requested by the Company, if at the Expiration Date (or any extended expiration date of the Offer, if applicable), any of the conditions of the Offer other than (or in addition to) the Minimum Condition or those set forth in Sections (c), (d), (e), (f) or (g) of Annex I shall not have been waived or satisfied, until (taking into account all such extension(s)) January 31, 2003. If at the expiration of the Offer all of the conditions to the Offer have been satisfied or waived, Merger Sub may extend the Offer pursuant to an amendment to the Offer providing for a "subsequent offering period" not to exceed twenty (20) Business Days to the extent permitted under, and in compliance with, Rule 14d-11 under the Exchange Act. Subject to the foregoing and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Acquisition Sub it to) irrevocably , accept for purchase all Company Common Stock tendered pursuant to the Offer (payment and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As pay for, as promptly as possible practicable after the irrevocable acceptance for purchase expiration of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(cb) Notwithstanding anything Parent, Merger Sub and the Company agree that the Offer Documents shall comply in all material respects with the requirements of applicable U.S. federal securities laws and, on the date first filed with the SEC and on the date first published, sent or given to the contrary contained 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 this Agreementorder to make the statements therein, in light of the circumstances under which they were made, not misleading, except that in complying with the foregoing commitments, Parent and Acquisition or Merger Sub expressly reserve may rely on the right to waive accuracy of any condition to information supplied by the Company or any of its stockholders for inclusion or incorporation by reference in the Offer (Documents, and the Company may rely on the accuracy of any information supplied by Parent or Merger Sub for inclusion or incorporation by reference in the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent permitted under applicable Laws) that such information shall have become false or modify misleading in any of material respect. Parent and Merger Sub agree to take all steps necessary to cause the terms of Schedule TO as so corrected to be filed with the Offer, except that, without SEC and the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number other Offer Documents as so corrected to be disseminated to holders of shares of Company Common Stock sought to be purchased by Acquisition Sub Stock, in the Offer;
(iii) reduce the Offer Price (except each case as and to the extent required pursuant by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to Section 2.1(f));
(iv) increase review and comment on the Offer Price, except in response Documents and any amendments thereto prior to a Change in Recommendation their being filed with the SEC or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except disseminated to the extent required holders of shares of Company Common Stock. Parent and Merger Sub shall provide the Company and its counsel with a copy of any written comments or permitted pursuant to Section 2.1(e));
(vi) change telephonic notification of any oral comments Parent, Merger Sub or their counsel may receive from the form of consideration payable in the Offer;
(vii) impose any condition SEC or its staff with respect to the Offer in addition promptly after the receipt thereof, shall consult with the Company and its counsel prior to responding to any such comments, and shall provide the Company and its counsel with a copy of any written responses thereto and telephonic notification of any oral responses thereto of Parent or Merger Sub or their counsel.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any and all shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) The Company hereby consents to the Offer Conditions;
and represents that its Board of Directors, at a meeting duly called and held has (viiii) amendunanimously determined that this Agreement and the transactions contemplated hereby, modify or supplement any of the terms of including the Offer and the Merger, are fair to and in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any the best interests of the all holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend unanimously approved this Agreement and the Offer for the minimum period required by applicable Lawtransactions contemplated hereby, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to including the Offer; provided, however(iii) if Parent elects to exercise the Tender Offer Option, that Acquisition Sub shall not be required subject to extend the Offer and the Expiration Date Section 4.2, unanimously resolved to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide recommend to the holders of Company Common Stock that they tender their shares in the same economic effect Offer and vote to adopt this Agreement and (iv) taken all action necessary to render the limitations on business combinations contained in Section 203 of Delaware Law inapplicable to this Agreement and the transactions contemplated hereby and thereby.
(e) If Parent elects to exercise the Tender Offer Option, the Company will promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of shares of Company Common Stock and lists of securities positions of shares of Company Common Stock held in stock depositories, in each case true and correct as of the most recent practicable date, and will provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer. From and after the date of this Agreement, all such information concerning the Company's record holders and, to the extent known, beneficial holders, shall be made available to Merger Sub upon request. Subject to the requirements of applicable laws and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer, the Merger and the other transactions contemplated by this Agreement, Parent and Merger Sub shall, until consummation of the Offer, hold in confidence the information contained in any of such labels and lists, shall use such information only in connection with the Offer, the Merger and the other transactions contemplated by this Agreement and, if this Agreement shall be terminated in accordance with Article VII, shall deliver to the Company all copies of such information then in their possession or under their control.
(f) As soon as practicable on the day that the Offer is commenced, the Company shall file with the SEC and disseminate to holders of shares of Company Common Stock, in each case as and to the extent required by applicable federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the "Schedule 14D-9") that, subject to Section 4.2, shall reflect the recommendations of the Company's Board of Directors referred to above. The Company, Parent and Merger Sub each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect. The Company agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to holders of shares of Company Common Stock, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 and each amendment thereto prior to such action; provided that nothing in this Section 2.1(f) shall be construed its being filed with the SEC or disseminated to permit the holders of shares of Company to take any action with respect to its securities that is prohibited by the terms of this AgreementCommon Stock.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw Effective upon the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereofacceptance for payment of, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination)payment for, irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer Offer, Parent shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company's Board of Directors that equals the product of (i) the total number of directors on the Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section 5.2(g)) and shall cause any depository acting on behalf (ii) the percentage that the number of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock beneficially owned by Parent and/or Merger Sub (including shares of Company Common Stock accepted for payment) bears to the registered total number of shares of Company Common Stock outstanding, and the Company shall take all action necessary to cause Parent's designees to be elected or appointed to the Company's Board of Directors, including increasing the number of directors, and seeking and accepting resignations of incumbent directors. At such time, the Company will also use its reasonable best efforts to cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (i) each committee of the Board (subject to any relevant independence requirements) and (ii) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Board of Directors of the Company.
(h) The Company's obligations to appoint Parent's designees to the Board of Directors shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section. Parent shall supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1.
(i) Following the election or appointment of Parent's designees pursuant to Section 5.2(g) and until the Effective Time, there shall be in office at least one Continuing Director (as defined below) and the approval of not less than a majority of the directors of the Company then in office, which majority shall include the concurrence of a majority of the directors neither designated by Parent nor employed by the Company (the "Continuing Directors"), shall be required to authorize any amendment or modification to the Certificate of Incorporation or Bylaws of the Company (except as otherwise provided herein), any termination of this Agreement by the Company, any amendment of this Agreement requiring action by the Board of Directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub and any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company or other action by the Company hereunder which materially adversely affects the rights of the Company hereunder or of the holders thereofof shares of Company Common Stock (other than Parent and Merger Sub); provided, however, if the foregoing provisions of this subsection are invalid or incapable of being enforced under applicable law, then neither Parent nor Merger Sub shall approve (either in its capacity as a stockholder or as a party to this Agreement, as applicable), and Parent and Merger Sub shall use their commercially reasonable efforts to prevent the occurrence of, such action unless such action shall have received the unanimous approval of the Board of Directors of the Company. Following the election or appointment of Parent's designees pursuant to Section 5.2(g) and until the Effective Time, the Company shall use its reasonable best efforts to ensure that at least two (2) Continuing Directors shall remain members of the Board of Directors; provided that, if there shall be in office fewer than two (2) Continuing Directors for any reason, the parties shall use their commercially reasonable efforts to cause the Board of Directors of the Company to cause the person designated by the remaining Continuing Director to be elected to fill such vacancy, which person shall be deemed to be a Continuing Director for all purposes of this Agreement. If no Continuing Directors then remain, the other directors of the Company then in office shall designate two (2) persons to fill such vacancies who will not be directors, Officers, employees or Affiliates of Parent, Merger Sub or the Company, and such persons shall be deemed to be Continuing Directors for all purposes of this Agreement. The Board of Directors of the Company shall not delegate any matter covered by this Sections 5.2(g)-(i) to any committee of the Board of Directors of the Company unless such committee consists only of Continuing Directors.
Appears in 1 contract
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, As soon as promptly as reasonably practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after the date hereof, Acquisition Sub NAC shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer a tender offer to purchase for cash all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price per share equal to the Offer Price. The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which acquire each of the conditions set forth issued and outstanding NAC Warrants in Annex I exchange for $1.50 per NAC Warrant (the “Offer ConditionsPrice”) shall have been satisfied or waived), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant net to the Offer seller in cash (and not validly withdrawnthe “Tender Offer”). The obligation of Acquisition Sub NAC to irrevocably accept for purchase Company Common Stock payment, and pay for, all NAC Warrants validly tendered (and not withdrawn) pursuant to the Tender Offer shall be subject only to the satisfaction or (if permitted pursuant to the terms of this Agreement) waiver of each of the Offer Conditions (and shall not be subject to any other conditions)) the conditions that (i) there shall be validly tendered (and not withdrawn) Eight Million Two Hundred Fifty Thousand (8,250,000) NAC Warrants (the “Minimum Condition”) and (ii) the First Merger shall have been consummated. As promptly as possible after The Tender Offer shall be coupled with a consent solicitation that shall require any person tendering a NAC Warrant to vote in favor of the irrevocable acceptance for purchase Warrant Amendment, which shall among other things, reduce the term of any shares and all remaining NAC Warrants to expire upon the consummation of Company Common Stock tendered pursuant the First Merger. The Tender Offer shall initially be scheduled to expire on the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered later of: (A) 20 Business Days following the Offer Commencement Date (calculated as set forth in Rule 14d-1(g)(3) and not properly withdrawn pursuant Rule 14e-1(a) under the Exchange Act); and (B) the Closing Date (unless otherwise agreed to in writing by NAC and the OfferCompany)(the “Tender Offer Expiration Date”).
(cb) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, NAC shall not without the prior written consent of the CompanyCompany (such consent not to be unreasonably conditioned, neither Parent nor Acquisition Sub shall:
(iwithheld or delayed) amend, modify or waive any of the Minimum Condition;
(ii) decrease terms or conditions of the number Tender Offer, including any change to the form of shares of Company Common Stock sought consideration to be purchased delivered by Acquisition Sub in the Offer;
(iii) reduce the Offer Price (except NAC pursuant to the extent required pursuant to Section 2.1(f));
(iv) increase Tender Offer, the Offer Price, except in response to a Change in Recommendation the Minimum Condition or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Tender Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCLExpiration Date.
(dc) Unless extended pursuant to and in accordance with the terms of this Agreement, On the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Commencement Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub NAC shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if cause to be filed with the SEC, a statement of Tender Offer on Schedule TO with respect to the then-scheduled Expiration DateTender Offer (together with all amendments and supplements thereto, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition“Schedule TO”); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub disseminate to holders of NAC Warrants a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that shall extend reflect the terms and conditions of the Tender Offer and shall reflect the Company Board Recommendation. NAC shall use reasonable best efforts to cause such Schedule TO and Schedule 14D-9, and all exhibits, amendments and supplements thereto (collectively, the “Offer Documents”) and the filing and dissemination thereof to comply in all material respects with the applicable requirements of the Exchange Act and the rules and regulations thereunder and with all other applicable Laws. The Company, the Blocker Holder and Blocker shall each furnish to NAC all information concerning the Company, the Blocker Holder and Blocker, as applicable, including a description of their businesses, management, operations and financial condition, as NAC may reasonable request in connection with the Tender Offer. The Company and its legal counsel shall be given reasonable opportunity to review and comment on the Offer Documents (including all amendments and supplements thereto) prior to the filing thereof with the SEC and NAC shall give reasonable consideration to any such comments. NAC shall promptly notify the Company and its legal counsel upon the receipt of any comments received by NAC or its legal counsel from the SEC or its staff with respect to the Offer Documents, or any request from the SEC for amendments or supplements to the minimum period required by applicable LawOffer Documents, interpretation and shall promptly provide the Company and its legal counsel with copies of all written correspondence between the Company and its Representatives, on the one hand, and the SEC, on the other hand, or, if not in writing, a description of such communication. NAC shall give the Company and its legal counsel a reasonable opportunity to participate in preparing NAC’s proposed response to comments received from the SEC or position its staff and to promptly provide comments on any proposed response thereto, and NAC shall give reasonable consideration to any such comments. Each of NAC and the Company: (i) shall use its reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the New York Stock Exchange Tender Offer; and (“NYSE”ii) to the extent required by the applicable requirements of United States securities Laws and the rules and regulations of the SEC promulgated thereunder, shall use its reasonable best efforts to promptly correct any information provided by it for use in the Offer Documents to the extent such information shall be or shall have become false or misleading in any material respect, and NAC shall take all steps necessary to cause the Offer Documents, as supplemented or amended to correct such information, to be filed with the SEC and, to the extent required by the United States securities Laws and the rules and regulations of the SEC promulgated thereunder, to be disseminated to holders of NAC Warrants.
(d) The Company, the Blocker Holder and Blocker acknowledge that a substantial portion of the Offer Documents will include disclosures regarding the Company, the Blocker Holder and Blocker and their businesses, management, operations and financial condition. Accordingly, the Company and Blocker agree to (i) provide, as promptly as practicable, NAC with such information as shall be reasonably requested by NAC for inclusion in or attachment to the applicable Offer Document to be filed and/or mailed as of and following the commencement of the Tender Offer and (ii) ensure that such information is accurate in all material respects, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. The Company, the Blocker Holder and Blocker understand that such information shall be included in the Offer Documents and/or responses to comments from the SEC or its staff applicable in connection therewith. The Company, the Blocker Holder and Blocker shall make their respective directors, managers, officers and employees available to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer NAC and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing its counsel in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance connection with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours drafting of such termination), irrevocably filings and unconditionally terminate mailings and responding in a timely manner to comments from the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereofSEC.
Appears in 1 contract
Samples: Business Combination Agreement (Nebula Acquisition Corp)
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in any event within on or prior to the ten tenth (1010th) Business Day period commencing on the first (1st) Business Day after following the date hereofhereof (subject to the provision of any information required to be provided by the Company or its transfer agent pursuant to Section 2.2(a) or Section 2.3(e), Acquisition as applicable), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Companyother than Excluded Shares) at a price per share equal to the Offer Price. The date on which Acquisition Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer, and the obligation of Merger Sub to, and of Parent to cause Merger Sub to, irrevocably accept for payment and pay for any Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), shall be subject only to the conditions set forth on Annex I.I (the “Offer Conditions”).
(b) Subject to any extension by Merger Sub of the Offer pursuant to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Merger Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) Conditions shall have been satisfied or waived, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) consummate the Offer and irrevocably accept for purchase payment all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Merger Sub to irrevocably accept for purchase payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn) shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after (and in any event, no more than one (1) Business Day after) the irrevocable acceptance for purchase payment of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Merger Sub shall pay (subject to any applicable withholding Tax) for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, neither Parent and Acquisition nor Merger Sub expressly reserve the right to waive any condition to the Offer shall (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:):
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Xxxxxx Sub in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(viv) change the form of consideration payable in the Offer;
(viivi) impose any condition to the Offer in addition to the Offer Conditions;
(viiivii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common StockStock (in their capacities as such); or
(ixviii) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight one (1) minute after 11:59 p.m. (New York City time) on the date that is twenty (20) business days (for this purpose calculated determined as set forth in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, as it may be so extended, the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained hereinUnless this Agreement shall have previously been validly terminated in accordance with Article 8, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Merger Sub shall, and Parent shall cause Acquisition Merger Sub to, extend the Offer from time to time as follows: (i) if on the then-then scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Merger Sub if permitted hereunder, then Acquisition Merger Sub shall may, or upon written request by the Company shall, extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent the Company and the CompanyParent) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Merger Sub to waive any Offer Condition, other than Condition to the Minimum Conditionextent permitted hereunder); provided, however, that Acquisition Merger Sub shall not be required to extend the Offer and the then scheduled Expiration Date to a date later than the End Date; and (ii) Acquisition Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) Nasdaq or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Datestaff.
(f) The Offer Price shall be adjusted appropriately If, between the date hereof and proportionately to reflect the effect Acceptance Time, the outstanding Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, stock dividend (including any dividend or distribution consolidation of securities convertible into Company Common Stock), reorganization, recapitalizationshares, reclassification, combination, exchange of shares recapitalization or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Timesimilar transaction, and such adjustment to then the Offer Price shall provide be equitably adjusted to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such actionextent appropriate; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Merger Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) promptly (and in any event within twenty-four one (241) hours Business Day of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 1 contract
Samples: Merger Agreement (Forma Therapeutics Holdings, Inc.)
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after the date hereof, Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash (i) all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price per share equal to the Common Stock Offer Price and (ii) all of the outstanding Company Series A Preferred Stock at a price per share equal to the Preferred Stock Offer Price. The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.”
(b) Subject to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock and Company Series A Preferred Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase payment all Company Common Stock and Company Series A Preferred Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase payment Company Common Stock and Company Series A Preferred Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase payment of any shares of Company Common Stock and Company Series A Preferred Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of such Company Common Stock validly tendered and not properly withdrawn pursuant to the OfferCompany Series A Preferred Stock.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right (x) to increase the Common Stock Offer Price or Preferred Stock Offer Price and (y) to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 1 contract
Samples: Merger Agreement
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as As promptly as practicable, but in any no event within the ten (10) Business Day period commencing on the first (1st) Business Day later than five business days after the date hereofpublic announcement of the execution of this Agreement, Acquisition Merger Sub shall commence will, and the Parent will cause Merger Sub to, offer to purchase ( the "Offer") each outstanding share of the Common Stock, $0.01 par value (within the meaning "Common Stock"), of Rule 14d-2 under the Exchange Act) Company tendered pursuant to the Offer at a price of $4.25 per share, net to the seller in cash, and to cause the Offer to purchase for cash all remain open until the close of business on the twentieth business day after the commencement of the outstanding Company Offer (the "Expiration Date"). The obligations of Merger Sub and the Parent to consummate the Offer and to accept for payment and purchase the Common Stock (including any Company Common Stock subject to repurchase rights tendered in favor of the Company) at a price per share equal to the Offer Price. The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall will be subject only to the conditions set forth on Annex I.
in Schedule 1.01(a) (bOffer Conditions) Subject (the "Offer Conditions"). At the Company's request, Merger Sub will, and the Parent will cause Merger Sub to, extend the expiration date of the Offer from time to Section 2.1(e), as promptly as practicable time for up to an aggregate of ten business days following the Expiration Date if the condition set forth in clause (1) of the first paragraph of the Offer Conditions is not fulfilled prior to 12:00 p.m. on the later Expiration Date. Merger Sub will not, and the Parent will cause Merger Sub not to, decrease the price payable in the Offer, change the form of (i) consideration payable in the earliest date as Offer, reduce the number of which Acquisition Sub is permitted under applicable Law shares of Common Stock subject to the Offer, change the Offer Conditions, impose additional conditions to its obligation to consummate the Offer and to accept for payment Company and purchase shares of Common Stock tendered pursuant in the Offer, or change any other terms of the Offer in a manner adverse to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each holders of the conditions set forth in Annex I (Common Stock, except that Merger Sub may extend the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant Expiration Date to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each extent required by applicable law, if any of the Offer Conditions (and shall are not be subject to any other conditions). As promptly as possible after satisfied, or if less than 90% of the irrevocable acceptance for purchase of any outstanding shares of Company Common Stock have been validly tendered and not withdrawn pursuant to the Offer. Subject to the terms and conditions of the Offer and this Agreement, Acquisition Merger Sub shall will, and the Parent will cause Merger Sub to, accept for payment, and pay for for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything Offer that Merger Sub becomes obligated to the contrary contained in this Agreementaccept for payment, Parent and Acquisition Sub expressly reserve the right to waive any condition pay for, pursuant to the Offer (to promptly after the extent permitted under applicable Laws) or modify any of the terms expiration of the Offer, ; except that, without the prior written consent of the Company, neither Merger Sub will not, and the Parent nor Acquisition will cause Merger Sub shall:not to, accept for payment, or pay for, any shares of Common Stock so tendered unless the Minimum Condition (as defined in the Offer Conditions) will have been satisfied.
(ib) amendOn the date of the commencement of the Offer, modify Merger Sub and the Parent will file with the Securities and Exchange Commission (the "SEC") their Tender Offer Statement on Schedule 14D-1 (together with all supplements or waive amendments thereto, and including all exhibits, the Minimum Condition;
"Offer Documents"). Merger Sub and the Parent will give the Company and its counsel a reasonable opportunity to review and comment upon the Offer Documents prior to their being filed with the SEC or disseminated to the Company's stockholders. The Parent and Merger Sub agree that the Offer Documents will comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (ii) decrease the number "Exchange Act"), and the rules and regulations promulgated thereunder, and the Offer Documents, on the date first published, sent, or given to the Company's stockholders, will not contain any untrue statement of shares of Company Common Stock sought a material fact or omit to state any material fact required to be purchased 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 Acquisition the Parent or Merger Sub with respect to information supplied by the Company in writing specifically for inclusion or incorporation by reference in the Offer;
(iii) reduce Offer Documents. The Company agrees that any such information supplied by the Company that is included in the Offer Price (except Documents will not, at the time such information is furnished to the Parent, contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Parent, Merger Sub, and the Company will promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information becomes false or misleading in any material respect, and the Parent and Merger Sub will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under by the Exchange Act) following . The Parent and Merger Sub will provide the commencement (within Company and its counsel any comments the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) orParent, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfiedMerger Sub, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as their counsel may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) As promptly as practicable, but in no event later than the date on which the Parent notifies the Company that the Offer Documents initially are to be filed with the SEC, the Company will file its Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with all supplements or amendments thereto, and including all exhibits, the New York "Schedule 14D-9"), which will include a recommendation by the Company's Board of Directors that the Company's stockholders accept the Offer and tender their Common Stock pursuant to the Offer. The Company agrees that the Schedule 14D-9 will comply as to form in all material respects with the requirements of the Exchange (“NYSE”) Act and the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent, or given to the Company's stockholders, will 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 information supplied by the Parent or Merger Sub in writing specifically for inclusion in the Schedule 14D-9. The Parent and Merger Sub agree that any such information supplied by the Parent and Merger Sub that is included in the Schedule 14D-9 will not, at the time such information is furnished to the Company, contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Company, the Parent, and Merger Sub will promptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information becomes false or misleading in any material respect, and the Company will take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the Company's stockholders, in each case as and to the extent required by the Exchange Act. The Parent and its counsel will be given reasonable opportunity to review and comment upon the Schedule 14D-9 prior to its filing with the SEC or dissemination to stockholders of the Company. The Company will provide the Parent and its counsel any comments the Company or its counsel may receive from the SEC or its staff applicable with respect to the Offer; provided, however, Schedule 14D-9 promptly after the receipt of such comments. The Company's Board of Directors has resolved to recommend that Acquisition Sub shall not be required to extend the Company's stockholders accept the Offer and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company tender their Common Stock pursuant to the Offer and shall has received an opinion from Donaxxxxx, Xxfkxx & Xenrxxxx Xxxurities Corporation ("DLJ") that, as of the date of such opinion, the cash consideration to be received by the stockholders of the Company pursuant to the Offer and the Merger is fair to such stockholders from a financial point of view.
(d) If requested by the Parent or Merger Sub, the Company will, promptly following the purchase by Merger Sub pursuant to the Offer of that number of shares of Common Stock which, when aggregated with the shares of Common Stock then owned by the Parent and any of its affiliates, represents at least a majority of the shares of Common Stock then outstanding on a fully diluted basis, take all actions necessary to cause any depository acting on behalf of Acquisition persons designated by Merger Sub to returnbecome directors of the Company so that the total number of directors so designated equals the product, in accordance with applicable Lawrounded up to the next whole number, all tendered of (i) the total number of directors of the Company multiplied by (ii) the ratio of the number of shares of Company Common Stock beneficially owned by Merger Sub or its affiliates to the registered holders number of shares of Common Stock then outstanding. In furtherance thereof, the Company will take whatever action is necessary, including but not limited to amending the Company's bylaws, to increase the size of its Board of Directors, or use reasonable efforts to secure the resignation of directors, or both, as is necessary to permit that number of Merger Sub's designees to be elected to the Company's Board of Directors; provided that, prior to the Effective Time, the Company's Board of Directors will always have at least two members who are currently directors of the Company, except to the extent that no such individuals wish to be directors ("Continuing Directors"). The Company's obligations to appoint designees to its Board of Directors will be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Parent and Merger Sub will supply to the Company and will be solely responsible for any information with respect to either of them and their nominees, officers, directors, and affiliates required by Section 14(f) and Rule 14f-1. The Company will promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.01 and (provided Merger Sub has furnished the Company on a timely basis with all information required to be included in the Information Statement with respect to Merger Sub's designees) will include in the Schedule 14D-9 such information with respect to the Company and its officers and directors as is required under Section 14(f) and Rule 14f-1.
(e) Following the election or appointment of Merger Sub's designees pursuant to Section 1.01(d), any amendment to this Agreement, any termination of this Agreement by the Company, any extension by the Company of the time for the performance of any of the obligations of Merger Sub or the Parent under this Agreement (except as expressly permitted hereunder), any recommendation to stockholders or any modification or withdrawal of any such recommendation, any retention of counsel and other advisors in connection with the transactions contemplated hereby, or any waiver of any of the Company's rights under this Agreement will require the concurrence of a majority of the Continuing Directors, unless no individuals who are currently directors of the Company wish to be directors. In addition, the Continuing Directors will have the right to retain, at the expense of the Company, one separate firm of counsel to represent them in connection with the transactions contemplated hereby.
(f) The parties will cooperate with each other, including by furnishing any necessary information and making any filings required by applicable law, to ensure that the matters contemplated by this Section 1.01 are consummated as promptly as practicable.
Appears in 1 contract
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in any event within on or prior to the ten tenth (1010th) Business Day period commencing on the first (1st) Business Day after following the date hereofhereof (subject to the provision of any information required to be provided by the Company or its transfer agent pursuant to Section 2.2(a) or Section 2.3(e), Acquisition as applicable), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Companyother than Excluded Shares) at a price per share equal to the Offer Price. The date on which Acquisition Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer, and the obligation of Merger Sub to, and of Parent to cause Merger Sub to, irrevocably accept for payment and pay for any Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), shall be subject only to the conditions set forth on Annex I.I (the “Offer Conditions”).
(b) Subject to any extension by Merger Sub of the Offer pursuant to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Merger Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) Conditions shall have been satisfied or waived, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) consummate the Offer and irrevocably accept for purchase payment all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Merger Sub to irrevocably accept for purchase payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn) shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after (and in any event, no more than one (1) Business Day after) the irrevocable acceptance for purchase payment of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Merger Sub shall pay or shall cause to be paid (subject to any applicable withholding Tax) for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Merger Sub expressly reserve the right to waive any condition to of the Offer (Conditions and to the extent permitted under applicable Laws) or modify make any of changes to the terms of or conditions to the Offer, except ; provided that, neither Parent nor Merger Sub shall (without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:):
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Xxxxxx Sub in the Offer;
(iii) reduce the Offer Price Common Cash Amount (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(viv) change the form of consideration payable in the Offer;
(viivi) impose any condition to the Offer in addition to the Offer Conditions;
(viiivii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could would reasonably be expected to have an adverse effect on, any of the holders of Company Common StockStock (in their capacities as such);
(viii) decrease the number of CVRs to be issued per share of Company Common Stock (except to the extent required pursuant to Section 2.1(f));
(ix) amend or modify the terms of the CVRs or the CVR Agreement (other than in accordance with the definition thereof) in any manner adversely affecting, or that would reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock (in their capacities as such); or
(ixx) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight one (1) minute after 11:59 p.m. (New York City time) on the date that is twenty (20) business days (for this purpose calculated determined as set forth in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, as it may be so extended, the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained hereinUnless this Agreement shall have previously been validly terminated in accordance with Article 8, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Merger Sub shall, and Parent shall cause Acquisition Merger Sub to, extend the Offer from time to time as follows: (i) if on the then-then scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Merger Sub if permitted hereunder, then Acquisition Merger Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (as determined by Merger Sub in its discretion, subject to applicable Law, or such longer period as may be agreed to by Parent the Company and the CompanyParent) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Merger Sub to waive any Offer Condition, other than Condition to the Minimum Conditionextent permitted hereunder); provided, however, that Acquisition Merger Sub shall not be required to extend the Offer and or the then scheduled Expiration Date to a date later than the End Date; and (ii) Acquisition Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) Nasdaq or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Datestaff.
(f) The Offer Price shall be adjusted appropriately If, between the date hereof and proportionately to reflect the effect Acceptance Time, the outstanding Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, stock dividend (including any dividend or distribution consolidation of securities convertible into Company Common Stock), reorganization, recapitalizationshares, reclassification, combination, exchange of shares recapitalization or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Timesimilar transaction, and such adjustment to then the Offer Price shall provide be equitably adjusted to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such actionextent appropriate; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Merger Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) promptly (and in any event within twenty-four one (241) hours Business Day of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 1 contract
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as As promptly as practicable, but in any event within practicable following the ten (10) Business Day period commencing on the first (1st) Business Day after the date execution hereof, Acquisition Parent and Parent Sub shall commence will amend the Initial Offer (within the meaning Initial Offer as amended, the "Offer") to provide (i) for a purchase price per Share (including the associated Rights) of Rule 14d-2 under $61.00 (the Exchange Act"Per Share Price"), (ii) for the period the Offer is to remain open to be shortened to provide for the expiration of the Offer at 12:00 midnight on Friday, December 20, 1996 and (iii) for the consummation of the Offer to purchase for cash all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price per share equal to the Offer Price. The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions (the "Offer Conditions") set forth on Annex I.
A hereto (b) Subject to Section 2.1(e)collectively, as promptly as practicable on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn"Amendments"). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without Without the prior written consent of the Company, neither Parent nor Acquisition Parent Sub shall:
shall (i) amend, modify change or waive the Minimum Condition;
Condition (as defined in Annex A), (ii) decrease reduce the number of shares of Company Common Stock sought Shares subject to be purchased by Acquisition Sub in the Offer;
, (iii) reduce the Offer Price (except price per Share to be paid pursuant to the extent required pursuant to Section 2.1(f));
Offer, (iv) increase extend the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date if all of the Offer Conditions have been satisfied or waived, (except to the extent required or permitted pursuant to Section 2.1(e));
(viv) change the form of consideration payable in the Offer;
, (viivi) impose any condition amend, modify, or add to the Offer in addition to the Offer Conditions;
Conditions (viii) amendprovided, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Parent Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as its sole discretion may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, such conditions other than the Minimum Condition); provided) or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, howeverParent and Parent Sub may, that Acquisition Sub without the consent of the Company, (A) extend the Offer, if at the scheduled expiration date of the Offer any of the Offer Conditions shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and have been satisfied or waived, until such time as such conditions are satisfied or waived, (iiB) Acquisition Sub shall extend the Offer for the minimum any period required by applicable Lawany statute, rule, regulation, interpretation or position of the SEC or its staff any other governmental authority or the New York Stock Exchange agency (“NYSE”domestic, foreign or supranational) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to and (C) extend the Offer for any reason on one or more occasions for an aggregate of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (A) and the Expiration Date to a (B) of this sentence; and, if at any scheduled expiration date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to any of the holders Offer Conditions have not been satisfied or waived by Parent or Parent Sub but are capable of Company Common Stock being satisfied in the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit reasonable opinion of Parent and Parent Sub, on the Company to take any action with respect to its securities that is prohibited by written request of the terms of this Agreement.
(g) Neither Company, Parent nor Acquisition Sub shall terminate or withdraw from time to time extend the Offer prior for up to twenty business days in the then aggregate from the originally scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereofexpiration date thereof. In the event that this Agreement is terminated pursuant Subject to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours conditions of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Parent Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.will
Appears in 1 contract
Samples: Merger Agreement (Loctite Corp)
Tender Offer. (a) Unless Provided that this Agreement shall not have previously been validly terminated in accordance with Article 8IX hereof and none of the events set forth in Annex A hereto (the "Offer Conditions") shall have occurred or be existing, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after five business days of the date hereof, Acquisition Merger Sub shall will commence a tender offer (within the meaning of Rule 14d-2 under the Exchange Act"Offer") the Offer to purchase for cash all of the outstanding Company Common Stock shares of common stock, no par value (including any Company Common Stock subject to repurchase rights in favor the "Shares"), of the Company, together with the associated rights to purchase (the "Rights") Series A Junior Participating Preferred Stock, no par value, of the Company (the "Series A Preferred") at a price of $18.50 per share equal Share in cash, net to the Offer Priceseller. The initial expiration date on which Acquisition Sub commences of the Offer, within Offer (the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement "Initial Expiration Date.” The Offer ") shall be subject only to the conditions set forth on Annex I.
(b) twentieth business day from and after the date the Offer is commenced. Subject to Section 2.1(e1.1(d), as promptly as practicable on the later obligation of (i) the earliest date as of which Acquisition Merger Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept pay for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock any Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions)Conditions. As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Merger Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except thatwill not, without the prior written consent of the Company (such consent to be authorized by the Board of Directors of the Company, neither Parent nor Acquisition Sub shall:)
(i) amend, modify or waive the Minimum Condition;
Condition (as defined in Annex A), except pursuant to Section 1.1(d), (ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation price per Share or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
, (viiiii) decrease the number of Shares sought in the Offer, except pursuant to Section 1.1(d), (iv) impose any condition additional conditions to the Offer, (v) change any Offer Condition or amend any other term of the Offer if any such change or amendment would be in addition any manner adverse to the holders of Shares or (vi) except as provided below, extend the Offer Conditions;if all of the Offer Conditions have been satisfied; provided, however, and notwithstanding anything herein to the contrary, it is understood and agreed that Merger Sub may (a) extend the expiration date of the Offer after all of the Offer Conditions (other than the Minimum Condition) have been satisfied or waived as of any scheduled expiration date of the Offer if it reasonably determines such extension is appropriate in order to enable it to purchase in the Offer at least the number of Shares equal to the Minimum Condition (in which case Merger Sub may extend the expiration date on one or more occasions to a date and time not later than 12:00 midnight, New York City time, on the tenth business day following such scheduled expiration date (such time on such tenth business day, the "Early Date")) or (b) waive the Minimum Condition and exercise its rights under Section 1.1(d), if applicable. Parent and Merger Sub further agree that: (A) in the event of the
(viii) amend, modify or supplement any of 1. On the terms of the Offer in any manner adversely affectingand subject to the Offer Conditions, or Merger Sub shall pay for all Shares validly tendered and not withdrawn pursuant to the Offer that could reasonably be expected Merger Sub becomes obligated to have an adverse effect on, any purchase pursuant to the Offer as soon as practicable after the expiration of the holders Offer. The Company's Board of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer Directors shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) recommend acceptance of the Offer to its shareholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer as supplemented or amended from time to time as follows: (i) if on the then-scheduled Expiration Datetime, the Minimum Condition has not been satisfied or any "Schedule 14D-9") to be filed with the Securities and Exchange Commission (the "SEC") upon commencement of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition the Company's Board of Directors may thereafter amend or withdraw its recommendation in accordance with the second paragraph of Section 7.2.
(b) Parent and Merger Sub agree, as to the Offer to Purchase and related Letter of Transmittal (which documents, as supplemented or amended from time to time, together constitute the "Offer Documents"), and the Company agrees, as to the Schedule 14D-9, that such documents shall, in all material respects, comply with the requirements of the Exchange Act and the rules and regulations thereunder
(c) In connection with the Offer, the Company will cause its transfer agent to furnish promptly to Merger Sub a list, as of the most recent date practicable, of the record holders of Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares, any non-objecting beneficial owner lists and lists of security positions of Shares held in stock depositories in the Company's possession or control. The Company will furnish Merger Sub with such additional information (including, but not limited to, updated lists of holders of Shares and their addresses, mailing labels, non-objecting beneficial owner lists and lists of security positions) and such other assistance as Parent or Merger Sub or their agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer, Parent and Merger Sub shall not be required to extend hold in confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Offer and the Expiration Date Merger and, if this Agreement shall be terminated, shall, upon request, deliver to the Company all copies of such information then in their possession.
(d) In the event the Minimum Condition is not satisfied on any scheduled expiration date of the Offer, Merger Sub may, without the consent of the Company:
(i) extend the Offer to a date and time not later than the End Early Date., pursuant to Section 1.1(a);
(fii) The amend the Offer Price shall be adjusted appropriately and proportionately in contemplation of the exercise of the Stock Option Agreement (to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stockextent the Stock Option Agreement is exercisable at such time), reorganization, recapitalization, reclassification, combination, exchange to reduce the Minimum Condition to that number of shares or other like change with respect to Company Common Stock occurring on or after (the date hereof and prior "Option Exercise Minimum Number") equal to the Acceptance Timelesser of (x) the number of shares (the "Notional Number") which, when combined with the Option Number, equals 90.1% of the Shares then outstanding, and (y) such adjustment to the Offer Price shall provide to the holders number of Company Common Stock the same economic effect Shares as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities may agree in writing. The "Option Number" is the maximum number of Shares that is prohibited by are issuable upon exercise of the Stock Option Agreement without violation of the terms and conditions thereof such that the sum of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to number of Shares so issuable and the Notional Number equals 90.1% of the Shares then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.outstanding; or
Appears in 1 contract
Samples: Merger Agreement (Koninklijke Philips Electronics Nv)
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as As promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day reasonably practicable after the date hereof, Acquisition but in no event later than five business days after the public announcement of the execution of this Agreement, Purchaser or Merger Sub shall will commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) Shares at a price of not less than $15.50 per share equal Share in cash, net to the Offer Price. The date on which Acquisition Sub commences the Offerseller, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject in Exhibit A, and, subject only to Section 2.1(e)the terms and conditions of the Offer, will pay, as promptly as reasonably practicable on the later after expiration of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly Shares duly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub withdrawn. Purchaser expressly reserve reserves the right to waive any condition such condition, to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration price per Share payable in the Offer;
(vii) impose , and to make any condition to the Offer other changes in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms and conditions of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition Sub no change may be made which decreases the price per Share payable in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer other than those set forth in Exhibit A hereto or which extends the Offer (except as set forth in the following sentence). Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date (the initial scheduled expiration date being 20 business days following the commencement of the Offer) if, at the scheduled expiration date of the Offer, any of the conditions to Purchaser's obligation to accept for payment, and to pay for, the Shares, shall not be required to satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation or interpretation of 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 Purchaser's obligations to accept for payment, and to pay for, the Expiration Date Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than 90 percent, of the outstanding Shares on a date later than the End Datefully diluted basis.
(fb) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment hereby consents to the Offer Price shall provide and represents that the Board of Directors of the Company has unanimously determined that the Offer is fair to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing Shares and the Merger is in this Section 2.1(f) shall be construed to permit the best interests of the Company and the stockholders of the Company, approved the making of the Offer and resolved to take any action with respect to its securities that is prohibited recommend acceptance of the Offer by the terms holders of this Agreement.
(g) Neither Parent nor Acquisition Sub the Shares and approval of the Merger by the Company's stockholders. The Company's Board of Directors shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated recommend, in accordance with the terms provisions of Section 6.1(b) hereof, to its stockholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") to be filed with the SEC as soon as practicable on the day the Offer is commenced. In the event that this Agreement is terminated pursuant Purchaser agrees, as to the terms hereofOffer to Purchase and related Letter of 49 Transmittal (which together constitute the "Offer Documents") and the Company agrees, Acquisition Sub as to the Schedule 14D-9, that such documents shall, in all material respects, comply with the requirements of the Exchange Act and other applicable laws. The Company and its counsel, as to the Offer Documents, and the Purchaser and its counsel, as to the Schedule 14D-9, shall (and Parent be given an opportunity to review such documents prior to their being filed with the SEC. Neither Purchaser nor the Company shall cause Acquisition Sub to) promptly (and in file any event within twenty-four (24) hours of such terminationdocuments with the SEC without the approval of the other party (which shall not be unreasonably withheld), irrevocably and unconditionally terminate .
(c) In connection with the Offer, shall not acquire any shares of the Company Common Stock pursuant to will cause the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of transfer agent for the Company Common Stock to furnish promptly to Merger Sub a list, as of a recent date, of the registered record holders thereofof shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Merger Sub with such additional information (including, without limitation, updated lists of holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Purchaser or Merger Sub or their agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares.
Appears in 1 contract
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as As promptly as practicable, but in any event within practicable following the ten (10) Business Day period commencing on the first (1st) Business Day after the date execution hereof, Acquisition Parent and Parent Sub shall commence will amend the Initial Offer (within the meaning Initial Offer as amended, the "Offer") to provide (i) for a purchase price per Share (including the associated Rights) of Rule 14d-2 under $61.00 (the Exchange Act"Per Share Price"), (ii) for the period the Offer is to remain open to be shortened to provide for the expiration of the Offer at 12:00 midnight on Friday, December 20, 1996 and (iii) for the consummation of the Offer to purchase for cash all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price per share equal to the Offer Price. The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions (the "Offer Conditions") set forth on Annex I.
A hereto (b) Subject to Section 2.1(ecollectively, the "Amendments"). Without the prior written consent of the Company, as promptly as practicable on the later of neither Parent nor Parent Sub shall (i) change or waive the earliest date Minimum Condition (as defined in Annex A), (ii) reduce the number of which Acquisition Sub is permitted under applicable Law Shares subject to accept for payment Company Common Stock tendered the Offer, (iii) reduce the price per Share to be paid pursuant to the Offer, (iv) extend the Offer (and not validly withdrawn), and (ii) the earliest date as of which each if all of the conditions set forth in Annex I (the “Offer Conditions”) shall Conditions have been satisfied or waived, Acquisition (v) change the form of consideration payable in the Offer, (vi) amend, modify, or add to the Offer Conditions (provided, that Parent or Parent Sub in its sole discretion may waive any such conditions other than the Minimum Condition) or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Parent and Parent Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled expiration date of the Offer any of the Offer Conditions shall not have been satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any statute, rule, regulation, interpretation or position of the SEC or any other governmental authority or agency (domestic, foreign or supranational) applicable to the Offer, and (C) extend the Offer for any reason on one or more occasions for an aggregate of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (A) and (B) of this sentence; and, if at any scheduled expiration date of the Offer any of the Offer Conditions have not been satisfied or waived by Parent or Parent Sub but are capable of being satisfied in the reasonable opinion of Parent and Parent Sub, on the written request of the Company, Parent Sub shall (from time to time extend the Offer for up to twenty business days in the aggregate from the originally scheduled expiration date thereof. Subject to the terms and conditions of the Offer, Parent shall cause Acquisition Sub to) irrevocably accept will promptly pay for purchase all Company Common Stock Shares tendered and not withdrawn pursuant to the Offer (and not validly withdrawn)as soon as practicable after the expiration of the Offer. The obligation of Acquisition Parent Sub to irrevocably accept for purchase Company Common Stock payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each the Offer Conditions.
(b) The Company hereby consents to the Offer and the Merger (as defined in Section 2.1 hereof) and represents and warrants that (A) the Company Board (except for Xxxxx Xxxx, Xxxxxxxxx Xxxxxx and Xxxxxx Xxxxxxxx (the "Xxxxxx-Nominated Directors"), who abstained), at a meeting duly called and held, has (i) duly approved the adoption of this Agreement and the consummation of the transactions contemplated hereby, including, without limitation, the making of the Offer, (ii) by unanimous vote, (w) determined that the Offer and the Merger are in the best interests of the stockholders of the Company, (x) resolved to recommend acceptance of the Offer Conditions and approval and adoption of the agreement of merger (as such term is used in Section 251 of the General Corporation Law of the State of Delaware (the "DGCL")) contained in this Agreement by such stockholders of the Company, (y) taken all necessary steps to render Section 203 of the DGCL inapplicable to the Merger and shall not be subject the acquisition of Shares pursuant to the Offer and (z) taken any other conditions). As promptly as possible after action necessary (1) to render the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant Rights Agreement inapplicable with respect to the Offer, the Merger, this Agreement and the other transactions contemplated hereby, (2) to ensure that none of Parent, Parent Sub or Merger Sub (as defined in Section 2.1) or any of their Affiliates or Associates (each as defined in the Rights Agreement) is or will be considered to be an Acquiring Person (as defined in the Rights Agreement) and (3) to ensure that none of a Distribution Date, Triggering Event or Shares Acquisition Sub Date (each as defined in the Rights Agreement) occurs or shall pay for all shares occur by reason of the announcement or consummation of the Offer, the Merger or the execution or delivery of this Agreement or the consummation of any of the other transactions contemplated hereby and (B) Xxxxxx, Read & Co. Inc., the Company's independent financial advisor, has advised the Company Common Stock validly tendered and not properly withdrawn pursuant Board that, in its opinion, the consideration to be paid to the OfferCompany's stockholders (other than Parent, Parent Sub, Merger Sub or any of their affiliates) in the Offer and the Merger is fair, from a financial point of view, to such stockholders.
(c) As soon as practicable after the date hereof, Parent and Parent Sub will file with the SEC an amendment to the Schedule14D-1 which reflects the Amendments. As soon as practicable after the date hereof, the Company Board shall file with the SEC an amendment to the Schedule 14D-9 which contains the recommendations described in Section 1.1(b)(ii)(x) and the Company hereby consents to the inclusion of such recommendations in the Offer Documents (as defined in Section 1.1(d)) and to the inclusion of a copy of the Schedule 14D-9 with the Offer Documents mailed or furnished to the Company's stockholders. Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amendCompany Board may withdraw, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub amend its recommendation if in the Offer;
(iii) reduce reasonable opinion of the Offer Price (except Company Board, after consultation with counsel, such recommendation would be inconsistent with its fiduciary duties to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer PriceCompany's stockholders under applicable law. Any such withdrawal, except in response to a Change in Recommendation modification or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub amendment shall not be required to extend the Offer and the Expiration Date to constitute a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms breach of this Agreement.
(gd) Neither Parent nor Acquisition and Parent Sub shall terminate or withdraw agree, as to the Schedule 14D-1, the offer to purchase and related letter of transmittal (collectively, the "Offer Documents"), and the Company agrees, as to the Schedule 14D-9, that such documents shall, in all material respects, comply with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations thereunder and other applicable laws. Parent, Parent Sub and the Company each agree that none of the information supplied by them in writing for inclusion in the Offer Documents and the Schedule 14D-9 will, at the respective times that the Offer Documents and the Schedule 14D-9 or any amendments or supplements thereto are filed with the SEC and are first published or sent or given to holder of Shares, 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. Parent, Parent Sub and the Company further agree to promptly correct any information provided by them for use in the Offer Documents or the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect and Parent and Parent Sub agree, as to the Offer Documents, and the Company agrees, as to the Schedule 14D-9, to take all steps necessary to cause such documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case, as and to the extent required by applicable laws. The Company and its counsel, as to the Offer Documents, and Parent and Parent Sub and its counsel, as to the Schedule 14D-9, shall be given an opportunity to review and comment upon such documents prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance their being filed with the terms hereof. SEC.
(e) In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate connection with the Offer, shall the Company will cause its transfer agent to furnish promptly to Parent Sub a list, as of a recent date, of the record holders of Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Parent Sub with such additional information (including, but not acquire any shares limited to, updated lists of Company Common Stock pursuant holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Parent or Parent Sub or their agents may reasonably request in communicating the Offer to the Offer record and shall cause any depository acting on behalf beneficial holders of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereofShares.
Appears in 1 contract
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after the date hereof, Acquisition Sub The Company shall commence (within the meaning of Rule 14d-2 under the Exchange Act), and use its reasonable best efforts to consummate, an issuer self-tender offer to all stockholders to repurchase at least five million (5,000,000) the Offer to purchase for cash all shares of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price of $1.43 per share equal to (the Offer Price“Tender Offer”) (it being understood that the Company shall not be in breach of the foregoing in the event that less than five million (5,000,000) shares of Common Stock accept and tender in the Tender Offer). The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Tender Offer shall be subject only to completed no later than March 15, 2017 (the conditions set forth on Annex I.
(b) Subject to Section 2.1(e“Tender Offer Expiration Date”), as promptly as practicable on . The obligations of the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law Company to accept for payment Company payment, and pay for, any shares of Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Tender Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Lawsthis Agreement) or modify any of the terms following conditions (the “Closing Conditions”): (A) the Company has obtained all governmental or regulatory consents and approvals necessary in order to consummate the Tender Offer; (B) no governmental authority of competent jurisdiction has enacted, issued or entered any restraining order, injunction or similar order or legal restraint that enjoins or otherwise prohibits the consummation of the Tender Offer; and (C) no legal action shall have been proposed, except thatinstituted or pending by a governmental authority of competent jurisdiction that challenges or otherwise relates to the Tender Offer. In no event shall the Company, without the prior written consent of the CompanyStockholders, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease reduce the number of shares of Company Common Stock sought subject to be purchased by Acquisition Sub in the Tender Offer;
; (iiiii) reduce the price per share in the Tender Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition pursuant to the Offer in addition to the Offer Conditions;
Tender Offer; or (viiiiii) amend, modify amend or supplement any term of the terms Tender Offer in a manner adverse to the Company’s stockholders.
(b) Promptly following the commencement of the Tender Offer, the Stockholders shall tender or cause to be tendered all of the shares of Common Stock that they hold beneficially or of record in the Tender Offer. Notwithstanding the foregoing, (i) the Stockholders will be permitted to sell any of their shares of Common Stock (including, if applicable, by withdrawing such shares from the Tender Offer) in open-market transactions; (ii) the Stockholders may withdraw any shares of Common Stock from the Tender Offer in any manner adversely affectingorder to sell, tender or exchange such shares to or with a Third Party (as defined below) at a higher per share value then the Stockholders otherwise would receive in the Tender Offer, except that could reasonably be expected to have an adverse effect on, the Stockholders shall not sell any of their shares of Common Stock in non-open market transactions to any Third Party that, to the holders knowledge of Company the Stockholders, has any beneficial ownership interest (including beneficial ownership of the shares of Common Stock acquired by such Third Party from the Stockholders) of 5.0% or more of the then-outstanding shares of Common Stock; or
and (ixiii) take any action Mx. Xxxxxx may withhold up to four hundred thousand (or fail 400,000) shares from the Tender Offer in order to take any actiontransfer them to organizations that are (A) that would result in the Merger not being permitted to be effected pursuant to Section 251(htax-exempt under section 501(c)(3) of the DGCLInternal Revenue Code and (B) unaffiliated with Mx. Xxxxxx.
(dc) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) Each of the Offer (the “Initial Expiration Date”) orInsiders shall refrain, and shall cause its Affiliates to refrain, from tendering any shares of Common Stock that they own beneficially or of record in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shallTender Offer. The Company shall not accept, and Parent shall cause Acquisition Sub its Representatives not to accept, any shares of Common Stock from the Insiders or their Affiliates in the Tender Offer. The Insiders shall not, and shall cause their Affiliates not to, extend the Offer from time to time as follows: transfer (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period except as may be agreed to specifically required by Parent and a final, non-appealable order of a court of competent jurisdiction or by operation of applicable law), sell, exchange, pledge or otherwise dispose of any shares of Common Stock from the Company) date hereof until six months after the Tender Offer is completed (as reflected in order to permit filings made by the satisfaction of such Offer Conditions (subject to Company with the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum ConditionSEC); provided, however, that Acquisition Sub the foregoing shall not be required apply to extend transfers (i) to Affiliates of such Insider (but only to the Offer and extent that any such Affiliate signs a joinder to this Agreement reasonably acceptable to the Expiration Date to a date later than the End Date; and Stockholders) or (ii) Acquisition Sub shall extend the Offer by an individual, either during his lifetime or upon death, by will or intestacy, or to any trust, limited partnership, limited liability company or other entity established for the minimum period required by applicable Law, interpretation or position primary benefit of any of the SEC Insider or its staff his siblings, ancestors, descendants or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Datespouse for estate planning purposes.
(fd) The Offer Price Company shall be adjusted appropriately comply with all laws, rules and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing regulations in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance connection with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Tender Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 1 contract
Tender Offer. (a) Unless Provided that this Agreement shall not have previously been validly terminated in accordance with Article 8IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day five business days after the date hereofpublic announcement of the execution of this Agreement, Acquisition Purchaser Sub shall will commence a tender offer (within the meaning of Rule 14d-2 under the Exchange Act"Offer") the Offer to purchase for cash all of the outstanding Company Common Stock shares of common stock, par value $0.001 per share (including any Company Common Stock subject to repurchase rights in favor the "Shares"), of the Company) Company at a price of $16.00 per share equal Share in cash, net to the seller, which Offer Priceshall have an initial expiration date not later than twenty (20) business days after the commencement of the Offer. The date on which Acquisition obligation of Purchaser Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept pay for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition conditions to the Offer set forth in Annex A hereto. It is agreed that the Minimum Condition (to as defined in Annex A) and the extent permitted under applicable Laws) or modify any other conditions set forth in Annex A hereto are for the sole benefit of Purchaser Sub and may be asserted by Purchaser Sub regardless of the terms of circumstances giving rise to any such condition unless the OfferPurchaser, except thatPurchaser Sub or their Affiliates shall have caused the circumstances giving 2 rise to such condition. Purchaser Sub expressly reserves the right in its sole discretion to waive, in whole or in part, at any time or from time to time, any such condition (other than the Minimum Condition, which may not be waived without the prior written consent of the Company), neither Parent nor Acquisition Sub shall:
(i) amendto increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer, modify or waive provided that, unless previously approved by the Company in writing, no change may be made that decreases the price per Share payable in the Offer, reduces the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change changes the form of consideration payable in the Offer;
(vii) impose any condition , reduces the maximum number of Shares to be purchased in the Offer, imposes conditions to the Offer in addition to those set forth in Annex A hereto or amends or modifies such conditions in any manner adverse to the Offer Conditions;
(viii) amendholders of Shares. Purchaser Sub covenants and agrees that, modify or supplement any of subject to the terms conditions of the Offer set forth in any manner adversely affectingAnnex A hereto, or Purchaser Sub shall accept for payment and pay for Shares that could reasonably be expected have been validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable law; provided that, if the number of Shares that have an adverse effect on, any been validly tendered and not withdrawn represent less than 90% of the holders of Company Common Stock; or
(ix) take any action (Shares outstanding on a fully diluted basis, Purchaser Sub may extend the Offer up to the fifth business day following the date on which all conditions to the Offer shall first have been satisfied or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCLwaived.
(db) Unless extended pursuant Purchaser agrees, as to the offer to purchase and related letter of transmittal (which together constitute the "Offer Documents") and the Company agrees, as to the Schedule 14D-9, that such documents shall, in accordance all material respects, comply with the terms requirements of this Agreementthe Securities Exchange Act of 1934 (the "Exchange Act") and the rules and regulations thereunder and other applicable laws. The Company and its counsel, as to the Offer Documents, and Purchaser Sub and its counsel, as to the Schedule 14D-9, shall expire at midnight (New York City time) on be given an opportunity to review such documents prior to their being filed with the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”)SEC.
(ec) Notwithstanding anything In connection with the Offer, the Company will cause its transfer agent to furnish promptly to Purchaser Sub a list, as of a recent date, of the record holders of Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Purchaser Sub with such additional information (including, but not limited to, updated lists of holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Purchaser or Purchaser Sub or their agents may reasonably request in communicating the Offer to the contrary contained herein, but subject record and beneficial holders of Shares. Subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shallrequirements of applicable law, and Parent shall cause Acquisition Sub to, extend except for such steps as are necessary to disseminate the Offer from time Documents and any other documents necessary to time as follows: (i) if on consummate the then-scheduled Expiration DateMerger, Purchaser Sub and its Affiliates and Associates shall hold in confidence the Minimum Condition has not been satisfied or information contained in any of the other Offer Conditions has not been satisfiedsuch labels, or waived by Parent or Acquisition Sub if permitted hereunderlistings and files, then Acquisition Sub shall extend the Offer for one (1) or more occasions will use such information only in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend connection with the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub Merger, and, if this Agreement shall extend the Offer for the minimum period required by applicable Lawbe terminated, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable will deliver to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours all copies of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, information then in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereoftheir possession.
Appears in 1 contract
Samples: Merger Agreement (Tylan General Inc)
Tender Offer. (a) Unless Without limiting the generality of the foregoing provisions of this Agreement Article IV, Buyer shall, and Danisco shall have previously been validly terminated in accordance with Article 8cause Buyer to, as promptly as practicablepracticable (and, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day event, not later than five business days after the date hereof, that Genencor delivers the information to be supplied by it for use in the Schedule TO (as defined in the Acquisition Sub shall Agreement)) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act) the Offer ”), an offer to purchase for cash (the “Tender Offer”) any or all of the outstanding Company shares of Genencor Common Stock (including any Company Common Stock subject to repurchase rights in favor of on the Company) at a price per share equal to the Offer Price. The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the terms and conditions set forth in the Acquisition Agreement. As used in this Agreement, the term “business day” shall mean any day other than a Saturday, a Sunday or a day on which banks in New York, New York are authorized or obligated by law to close. Buyer shall, and Danisco shall cause Buyer to, commence and conduct the Tender Offer, the purchase of Genencor Common Stock pursuant thereto and the merger contemplated thereby, in accordance with all applicable law. Buyer shall not, and Danisco shall cause Buyer not to, without Exxxxxx’x prior consent, (i) decrease the price payable for shares of Genencor Common Stock in the Tender Offer, (ii) add any new condition to the Tender Offer not set forth either (A) in Annex I.I to the Acquisition Agreement or (B) elsewhere in the Acquisition Agreement, in each case, as in effect on the date hereof, or (iii) modify or expand any such condition to make its satisfaction more difficult.
(b) Subject Eastman and its counsel shall be given a reasonable opportunity to Section 2.1(e), as promptly as practicable review Buyer’s Tender Offer Statement on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant Schedule TO with respect to the Tender Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Tender Offer ConditionsStatement”) before it is filed with the SEC and Danisco and Buyer shall have been satisfied give due consideration to all reasonable additions, deletions or waivedchanges suggested thereto by Eastman and its counsel. In addition, Acquisition Sub Danisco and Buyer shall (provide to Eastman and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant its counsel in writing with any comments, whether written or oral, that Danisco, Buyer or their counsel may receive from time to time from the SEC or its staff with respect to the Tender Offer (Statement promptly after Danisco or Buyer’s receipt of such comments, and not validly withdrawn)any written or oral responses thereto. The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer Eastman and its counsel shall be subject only given a reasonable opportunity to the satisfaction review any such written responses and Buyer shall give due consideration to all reasonable additions, deletions or waiver of each of the Offer Conditions (changes suggested thereto by Eastman and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offerits counsel.
(c) Notwithstanding anything Eastman Sub shall not, and Eastman shall cause Eastman Sub and its other subsidiaries and affiliates not to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify tender any of the terms Genencor Common Shares in the Tender Offer. In the event that all of the Offerconditions to Buyer’s obligation to purchase and pay for the Genencor Common Shares and the Genencor Preferred Shares set forth in Section 5.01 hereof are not either satisfied or waived by Buyer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of then Buyer shall not purchase any shares of Company Genencor Common Stock sought to be purchased by Acquisition Sub in the Tender Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to . Exxxxxx and Exxxxxx Sub each hereby waive any right or claim that either may have under Exchange Act Rule 14d-10 or Exchange Act Rule 14e-5 against Danisco, Buyer and their respective affiliates arising from this Section 2.1(f4.05(c));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant Eastman shall promptly file all documents required by United States federal securities laws to and be filed by it in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance connection with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent Agreement and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to the Tender Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 1 contract
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after After the date hereofhereof (the "COMMENCEMENT DATE"), Acquisition Sub shall Suiza Foods may cause PCI to commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer a tender offer to purchase for cash all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) PCI Notes for cash at a purchase price per share equal that is mutually agreeable to Suiza Foods, the Reid Xxxent and Vestar (the "TENDER OFFER"). Pursuant to the Offer Price. The date on which Acquisition Sub commences the Tender Offer, within PCI would agree to purchase the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock PCI Notes that are validly tendered and not properly withdrawn pursuant prior to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date set forth in the Offer to Purchase (the "INITIAL EXPIRATION DATE"). PCI may, at any time and from time to time until July 31, 1999 (assuming all the conditions to the Tender Offer have not been met), extend the Initial Expiration Date. The date that is the later of the Initial Expiration Date and the latest time and date to which the Tender Offer (except to may be extended is called the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any "EXPIRATION DATE." The consummation of the terms Tender Offer would be conditioned upon a mutually agreeable minimum principal amount of the PCI Notes having been validly tendered and not withdrawn at the Expiration Date and upon the satisfaction of such conditions as shall be mutually agreed among Suiza Foods, the Reid Xxxent and Vestar. If the Tender Offer is commenced, PCI shall comply with, and make any filings or take any other actions required to be taken under state or federal law in any manner adversely affectingconnection with the commencement and consummation of the Tender Offer. If the Tender Offer is commenced, or that could reasonably be expected concurrently with the Tender Offer Suiza intends to have an adverse effect on, any cause PCI to solicit and obtain the consent (the "CONSENTS") of the holders of Company Common Stock; or
(ix) take any action (or fail a majority in principal amount of the PCI Notes to take any action) that would result in the Merger not being permitted adoption of amendments to the covenants and the provisions of the Indenture governing the PCI Notes to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreementmutually agreed among Suiza Foods, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.Reid Xxxent
Appears in 1 contract
Samples: Contribution and Merger Agreement (Suiza Foods Corp)
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after the date hereof, Acquisition Sub The Company shall commence (within the meaning of Rule 14d-2 under the Exchange Act), and use its reasonable best efforts to consummate, an issuer self-tender offer to all stockholders to repurchase at least five million (5,000,000) the Offer to purchase for cash all shares of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price of $1.43 per share equal to (the Offer Price“Tender Offer”) (it being understood that the Company shall not be in breach of the foregoing in the event that less than five million (5,000,000) shares of Common Stock accept and tender in the Tender Offer). The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Tender Offer shall be subject only to completed no later than March 15, 2017 (the conditions set forth on Annex I.
(b) Subject to Section 2.1(e“Tender Offer Expiration Date”), as promptly as practicable on . The obligations of the later of (i) the earliest date as of which Acquisition Sub is permitted under applicable Law Company to accept for payment Company payment, and pay for, any shares of Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Tender Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Lawsthis Agreement) or modify any of the terms following conditions (the “Closing Conditions”): (A) the Company has obtained all governmental or regulatory consents and approvals necessary in order to consummate the Tender Offer; (B) no governmental authority of competent jurisdiction has enacted, issued or entered any restraining order, injunction or similar order or legal restraint that enjoins or otherwise prohibits the consummation of the Tender Offer; and (C) no legal action shall have been proposed, except thatinstituted or pending by a governmental authority of competent jurisdiction that challenges or otherwise relates to the Tender Offer. In no event shall the Company, without the prior written consent of the CompanyStockholders, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease reduce the number of shares of Company Common Stock sought subject to be purchased by Acquisition Sub in the Tender Offer;
; (iiiii) reduce the price per share in the Tender Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition pursuant to the Offer in addition to the Offer Conditions;
Tender Offer; or (viiiiii) amend, modify amend or supplement any term of the terms Tender Offer in a manner adverse to the Company’s stockholders.
(b) Promptly following the commencement of the Tender Offer, the Stockholders shall tender or cause to be tendered all of the shares of Common Stock that they hold beneficially or of record in the Tender Offer. Notwithstanding the foregoing, (i) the Stockholders will be permitted to sell any of their shares of Common Stock (including, if applicable, by withdrawing such shares from the Tender Offer) in open-market transactions; (ii) the Stockholders may withdraw any shares of Common Stock from the Tender Offer in any manner adversely affectingorder to sell, tender or exchange such shares to or with a Third Party (as defined below) at a higher per share value then the Stockholders otherwise would receive in the Tender Offer, except that could reasonably be expected to have an adverse effect on, the Stockholders shall not sell any of their shares of Common Stock in non-open market transactions to any Third Party that, to the holders knowledge of Company the Stockholders, has any beneficial ownership interest (including beneficial ownership of the shares of Common Stock acquired by such Third Party from the Stockholders) of 5.0% or more of the then-outstanding shares of Common Stock; or
and (ixiii) take any action Xx. Xxxxxx may withhold up to four hundred thousand (or fail 400,000) shares from the Tender Offer in order to take any actiontransfer them to organizations that are (A) that would result in the Merger not being permitted to be effected pursuant to Section 251(htax-exempt under section 501(c)(3) of the DGCLInternal Revenue Code and (B) unaffiliated with Xx. Xxxxxx.
(dc) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) Each of the Offer (the “Initial Expiration Date”) orInsiders shall refrain, and shall cause its Affiliates to refrain, from tendering any shares of Common Stock that they own beneficially or of record in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shallTender Offer. The Company shall not accept, and Parent shall cause Acquisition Sub its Representatives not to accept, any shares of Common Stock from the Insiders or their Affiliates in the Tender Offer. The Insiders shall not, and shall cause their Affiliates not to, extend the Offer from time to time as follows: transfer (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period except as may be agreed to specifically required by Parent and a final, non-appealable order of a court of competent jurisdiction or by operation of applicable law), sell, exchange, pledge or otherwise dispose of any shares of Common Stock from the Company) date hereof until six months after the Tender Offer is completed (as reflected in order to permit filings made by the satisfaction of such Offer Conditions (subject to Company with the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum ConditionSEC); provided, however, that Acquisition Sub the foregoing shall not be required apply to extend transfers (i) to Affiliates of such Insider (but only to the Offer and extent that any such Affiliate signs a joinder to this Agreement reasonably acceptable to the Expiration Date to a date later than the End Date; and Stockholders) or (ii) Acquisition Sub shall extend the Offer by an individual, either during his lifetime or upon death, by will or intestacy, or to any trust, limited partnership, limited liability company or other entity established for the minimum period required by applicable Law, interpretation or position primary benefit of any of the SEC Insider or its staff his siblings, ancestors, descendants or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Datespouse for estate planning purposes.
(fd) The Offer Price Company shall be adjusted appropriately comply with all laws, rules and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing regulations in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance connection with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Tender Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 1 contract
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after the date hereof, Acquisition Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price per share equal to the Offer Price. The date on which Acquisition Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to any extension by Merger Sub of the Offer pursuant to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Merger Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied waived by Merger Sub or waivedParent (to the extent so waivable by the terms of this Agreement) or satisfied, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) consummate the Offer and irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Merger Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after (and, in any event, no more than three (3) Business Days after) the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Merger Sub shall pay the Offer Price (subject to any applicable withholding tax) for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. Payments of the Offer Price shall be made in cash, net of applicable withholding taxes and without interest, upon the terms and subject to the conditions of the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Merger Sub expressly reserve the right right, subject to waive any condition compliance with the Exchange Act, but only in a manner that is not inconsistent with the terms of this Agreement, to the Offer (to the extent permitted under applicable Laws) waive, amend or modify any of Offer Condition (other than the terms of the OfferMinimum Condition) in their sole discretion; provided, except however, that, without the prior written consent of the Company, neither Parent nor Acquisition Merger Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Merger Sub in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Merger Sub shall, and Parent shall cause Acquisition Merger Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Merger Sub if permitted hereunder, then Acquisition Merger Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Merger Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Merger Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) NASDAQ or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Datestaff.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Merger Sub shall terminate or withdraw the Offer prior to the then then-scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 1 contract
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in any event within on or prior to the ten tenth (1010th) Business Day period commencing on the first (1st) Business Day after following the date hereofhereof (subject to the provision of any information required to be provided by the Company or its transfer agent pursuant to Section 2.2(a) or Section 2.3(e), Acquisition as applicable), Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash all of the outstanding shares of Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price per share equal to the Offer Price. The date on which Acquisition Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer Offer, and the obligation 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 tendered pursuant to the Offer, shall be subject only to the conditions set forth on Annex I.I (the “Offer Conditions”).
(b) Subject to any extension by Merger Sub of the Offer pursuant to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Acquisition Merger Sub is permitted under applicable Law to accept for payment shares of Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) Conditions shall have been satisfied or or, if permitted hereunder, waived, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) consummate the Offer and irrevocably accept for purchase payment all shares of Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Merger Sub to irrevocably accept for purchase payment shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after (and in any event, no more than one (1) Business Day after) the irrevocable acceptance for purchase payment of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Merger Sub shall (and Parent shall cause Merger Sub to) pay (subject to any applicable withholding Tax) for all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, neither Parent and Acquisition nor Merger Sub expressly reserve the right to waive any condition to the Offer shall (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:Company in its sole discretion):
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Xxxxxx Sub in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Priceaccelerate, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date Expiration Time of the Offer (except to the extent required or permitted pursuant to Section 2.1(e)) or terminate or withdraw the Offer (except upon a valid termination of this Agreement as provided in Section 2.1(g));
(viv) change the form of consideration payable in the Offer;
(viivi) impose any condition to the Offer in addition to the Offer Conditions;
(viiivii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of shares of Company Common StockStock (in their capacities as such); or
(ixviii) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight one (1) minute after 11:59 p.m. (New York City time) on the date that is twenty (20) business days (for this purpose calculated determined as set forth in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration DateTime”) or, in the event the Initial Expiration Date Time has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, as it may be so extended, the “Expiration DateTime”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Merger Sub shall, and Parent shall cause Acquisition Merger Sub to, extend the Offer from time to time as follows: (i) if on at the then-then scheduled Expiration DateTime, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Merger Sub if permitted hereunder, then Acquisition upon the Company’s written request, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent the Company and the CompanyParent) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Merger Sub to waive any Offer Condition, other than Condition to the Minimum Conditionextent permitted hereunder); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) Nasdaq or its staff applicable to staff. Notwithstanding the Offer; providedforegoing, however, that Acquisition in no event shall Merger Sub shall not be required to extend the Offer and the then scheduled Expiration Date Time to a date later than the earlier to occur of (1) the valid termination of this Agreement in compliance with Article 8 and (2) the End Date.
(f) The Offer Price shall be adjusted appropriately If, between the date hereof and proportionately to reflect the effect Acceptance Time, the outstanding shares of Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, stock dividend (including any dividend consolidation of shares, reclassification or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to then the Offer Price shall provide be equitably adjusted to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such actionextent appropriate; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Merger Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date Time unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is validly terminated pursuant to the terms hereof, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 1 contract
Tender Offer. Notwithstanding anything to the contrary in this Agreement, the Confidentiality Agreement or otherwise, after the commencement of a tender offer or exchange offer by a third party unaffiliated with Parent or Merger Sub that, if successful, would result in any Person or group becoming a beneficial owner of fifty percent (a50%) Unless this Agreement or more of the issued and outstanding shares of Company Common Stock, Parent shall have previously been validly terminated the right, in accordance with Article 8, as promptly as practicableits sole discretion, but in not the obligation, to commence, or to cause Merger Sub or another one of its affiliates (such entity, the “Tender Offeror”) to commence, at any event within the ten (10) Business Day period commencing on the first (1st) Business Day time after the date hereof, Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase a cash tender offer for cash all 100% of the issued and outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) Shares at a purchase price per share equal share, net to the Offer Price. The date on which Acquisition Sub commences holders thereof, equal or greater to the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as Merger Consideration (the “Tender Offer”); provided, that if Parent or the Tender Offeror elects to commence a Tender Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to Section 2.1(e), as promptly as practicable on the later of (i) it shall be a condition to the earliest date as obligation of which Acquisition Sub is permitted under applicable Law the Tender Offeror to accept for payment Company Common Stock and pay for Shares tendered pursuant to in the Tender Offer that more than 50% of the outstanding Shares be tendered in the Tender Offer (and not validly withdrawnsuch condition, the “Minimum Condition”), and (ii) except for the earliest date as Minimum Condition, the obligation of which each the Tender Offeror to accept for payment and pay for Shares tendered in the Tender Offer shall not be materially more conditional than the obligation of Parent and Merger Sub to consummate the Merger, (iii) following satisfaction of the conditions set forth in Annex I Article 4, Parent, Merger Sub and/or the Tender Offeror shall be obligated to consummate (x) the “Offer Conditions”Merger or (y) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept a merger providing for purchase all Company Common Stock tendered pursuant cash consideration at least equal to the Offer (Merger Consideration and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer which shall otherwise be subject only to the satisfaction or waiver of each of the Offer Conditions (on terms and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Sub in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide conditions no less favorable to the holders of Company Common Stock Shares than the same economic effect Merger, and (iv) the Tender Offer shall comply with all applicable Laws, including the Exchange Act and the rules, regulations and schedules promulgated thereunder. The parties hereto shall (a) negotiate in good faith and as contemplated by expeditiously as practicable, any and all amendments, modifications or waivers of this Agreement prior and the Confidentiality Agreement necessary or appropriate to such action; provided allow Parent or Tender Offeror to implement the Tender Offer, (b) make any and all amendments or modifications to the Proxy Statement or any Other Filings, (c) make any and all filings with or submissions to (and/or make any and all amendments or modifications to existing filings or submissions), and seek any and all consents, authorizations and permits from, any Governmental Entity necessary or appropriate in light of the Tender Offer, and (d) otherwise use commercially reasonable efforts to implement the provisions of this Section 8.15 and to ensure the Merger and the Tender Offer comply with all applicable Law and are consummated. For avoidance of doubt, to the extent requested by Parent or the Tender Offeror, the Company acknowledges that nothing the representations and warranties set forth in the last sentence of Section 3.3(b) apply to the Tender Offer described in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement8.15.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
Appears in 1 contract
Samples: Merger Agreement (Peco Ii Inc)
Tender Offer. (a) Unless Notwithstanding anything to the contrary in this Agreement, the Confidentiality Agreement or otherwise, in the event that Parent determines, in its reasonable, good faith judgment that doing so will increase the likelihood of the consummation of the transactions contemplated hereby, Parent shall have previously been validly terminated in accordance with Article 8the right to commence, as promptly as practicableor to cause Merger Sub or another one of its affiliates (such entity, but in the "Tender Offeror") to commence, at any event within the ten (10) Business Day period commencing on the first (1st) Business Day time after the date hereof, Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase a cash tender offer for cash any and all of the issued and outstanding shares of the Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a purchase price per share share, net to the holders thereof, equal to the Offer Price. The date on which Acquisition Sub commences the OfferMerger Consideration, within the meaning of Rule 14d-2 under the Exchange Actprovided, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to Section 2.1(e), as promptly as practicable on the later of that (i) it shall be a condition to the earliest date as obligation of which Acquisition Sub is permitted under applicable Law the Tender Offeror to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept pay for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to in the Offer, Acquisition Sub tender offer that there shall pay for all shares of Company Common Stock have been validly tendered and not properly withdrawn pursuant prior to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any expiration date of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the tender offer that number of shares of Company Common Stock sought which, when added to be purchased any shares of Company Common Stock owned by Acquisition Sub Parent and Merger Sub, represents 90% or greater of the issued and outstanding shares of Company Common Stock (such condition, the "Minimum Condition"), (ii) except for the Minimum Condition, the obligation of the Tender Offeror to accept for payment and pay for shares of Company Common Stock tendered in the Offer;
tender offer shall not be more conditional than the obligation of Parent and Merger Sub to consummate the Merger, (iii) reduce Parent, Merger Sub and/or the Offer Price Tender Offeror shall be obligated to consummate (except x) the Merger or (y) a merger providing for cash consideration at least equal to the extent required pursuant Merger Consideration and which shall otherwise be on terms and conditions no less favorable to Section 2.1(f));
the holders of shares of Company Common Stock than the Merger, (iv) increase the Offer Pricetender offer shall comply with all applicable laws, except in response to a Change in Recommendation or a Superior Proposal Notice;
including the Exchange Act, Sections 14(d) and 14(e) thereof and the rules, regulations and schedules promulgated thereunder, and (v) extend the Tender Offeror shall not be required to accept for payment or otherwise change pay for any validly tendered shares if, at the expiration date of the Offer tender offer the conditions set forth in Section 6.1 (except to the extent required or permitted pursuant to other than Section 2.1(e6.1(a));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to and Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms 6.2 of this Agreement, the Offer Agreement shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not have been satisfied or any waived. The expiration date of the other Offer Conditions has tender offer shall not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend be earlier than 60 calendar days after the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition)date hereof; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to if a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer Third Party commences a tender offer for the minimum period required by applicable Law, interpretation or position 50% of more of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect outstanding shares of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and tender offer by the Tender Offeror may expire one (1) Business Day prior to the Acceptance Timeinitial expiration date of such other tender offer. The parties hereto shall (a) negotiate in good faith and as expeditiously as practicable any and all amendments, modifications or waivers of this Agreement and the Confidentiality Agreement necessary or appropriate to implement this Section 5.16, (b) make any and all amendments or modifications to the Proxy Statement, (c) make any and all filings with or submissions to (and/or make any and all amendments or modifications to existing filings or submissions), and such adjustment seek any and all consents, authorizations and permits from, any Governmental Entity necessary or appropriate in light of the tender offer, including under any Antitrust Law, other applicable law or otherwise, and (d) otherwise take any and all actions necessary or appropriate to implement this Section 5.16 and to ensure the Merger and the tender offer comply with all applicable laws and are consummated. For avoidance of doubt, the Company acknowledges that the representations and warranties set forth in Sections 3.1(v) and 3.1(y) apply to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing tender offer described in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof5.16. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub Tender Offeror shall (and Parent shall cause Acquisition Sub to) promptly (and acquire in any event within twenty-four (24) hours the aggregate a number of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any outstanding shares of Company Common Stock Stock, pursuant to the Offer tender offer or otherwise, sufficient to enable Parent, Merger Sub or the Company to cause the Merger to become effective pursuant to Section 253 of the DGCL without a meeting of stockholders of the Company, Parent shall take all necessary and shall appropriate action to cause any depository acting on behalf the Merger to become effective pursuant to Section 253 of Acquisition Sub to returnthe DGCL as soon as practicable after such acquisition, without a meeting of stockholders of the Company, in accordance with applicable Lawand subject to the DGCL. For avoidance of doubt, all tendered in such event consummation of the Merger shall not be subject to any of the conditions set forth in Article VI hereof. Parent shall amend or alter the Debt Commitment Letter or enter into new debt commitment letter(s) that would enable the Tender Offeror to finance the tender offer and the Merger in order to effect the tender offer in accordance with the provisions in this Section 5.16; provided that any such financing shall be on terms no less favorable in the aggregate to Parent or Merger Sub than those included in such Debt Commitment Letter and reasonably satisfactory to the Company.
(b) Notwithstanding Section 1.5 hereof or any other provision hereof, upon the completion of the tender offer and until the Effective Time (the “Interim Period”), the Board of Directors of the Company shall have at least three directors who are directors of the Company on the date of this Agreement (the “Continuing Directors”); and provided further that, in such event, if the number of Continuing Directors shall be reduced below three for any reason whatsoever, the remaining Continuing Directors or Director shall designate a person or persons to fill any such vacancy who shall be deemed to be a Continuing Director. During the Interim Period, the approval of a majority of the Continuing Directors then serving shall be required to (i) authorize any agreement between the Company and any of its Subsidiaries, on the one hand, and Parent, Merger Sub or any of their Affiliates on the other hand, (ii) amend or terminate this Agreement on behalf of the Company, (iii) exercise or waive any of the Company’s rights or remedies hereunder, (iv) waive or extend the time for performance of Parent’s or Merger Sub’s obligations hereunder, (v) amend the Company’s or any of its Subsidiaries’ charter or bylaws, if such action would adversely affect the holders of shares of Company Common Stock Stock, or (vi) take any other action by the Company in connection with this Agreement or the transactions contemplated hereby required to be taken by the registered holders thereofCompany’s Board of Directors.
Appears in 1 contract
Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in any event within the ten (10) Business Day period commencing on the first (1st) Business Day after the date hereof, Acquisition Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price per share equal to the Offer Price. The date on which Acquisition Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to any extension by Merger Sub of the Offer pursuant to Section 2.1(e), as promptly as practicable on following the later of (i) the earliest date as of which Acquisition Merger Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) irrevocably accept for purchase payment all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Merger Sub to irrevocably accept for purchase payment Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible practicable after (and in any event, no more than three (3) Business Days after) the irrevocable acceptance for purchase payment of any shares of Company Common Stock tendered pursuant to the Offer, Acquisition Merger Sub shall pay (subject to any applicable withholding tax) for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Merger Sub expressly reserve reserves the right to waive any condition to of the Offer Conditions (to the extent permitted under applicable LawsLaw) or modify and to make any of changes to the terms of or conditions to the Offer, except Offer not inconsistent with the terms of this Agreement; provided that, without the prior written consent of the Company, neither Parent nor Acquisition Merger Sub shall:
(i) amend, modify or waive the Minimum Condition;
; Table of Contents (ii) decrease the number of shares of Company Common Stock sought to be purchased by Acquisition Merger Sub in the Offer;
(iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f));
(iv) increase the Offer Price, except in response to a Change in Circumstance Notice, a Change in Recommendation or a Superior Proposal Notice;
(v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could would reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated determined as set forth in accordance with Rule 14d-1(g)(3) under the Exchange Act) following from the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, as it may be so extended, the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Merger Sub shall, and Parent shall cause Acquisition Merger Sub to, extend the Offer from time to time as follows: (i) if on the then-then scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Acquisition Merger Sub if permitted hereunder, then Acquisition Merger Sub shall extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (as determined by Merger Sub in its discretion, subject to applicable Law, or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Merger Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that Acquisition Merger Sub shall not be required to extend the Offer and or the Expiration Date to a date later than the End Date; and (ii) Acquisition Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange (“NYSE”) NASDAQ or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Datestaff.
(f) The If, between the date hereof and the Acceptance Time, the outstanding Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such actionextent appropriate; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Merger Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Acquisition Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.. Table of Contents
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Tender Offer. (a) Unless Notwithstanding anything to the contrary in this Agreement, the Confidentiality Agreement or otherwise, in the event that Parent determines, in its reasonable, good faith judgment that doing so will increase the likelihood of the consummation of the transactions contemplated hereby, Parent shall have previously been validly terminated in accordance with Article 8the right to commence, as promptly as practicableor to cause Merger Sub or another one of its affiliates (such entity, but in the "Tender Offeror") to commence, at any event within the ten (10) Business Day period commencing on the first (1st) Business Day time after the date hereof, Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase a cash tender offer for cash any and all of the issued and outstanding shares of the Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a purchase price per share share, net to the holders thereof, equal to the Offer Price. The date on which Acquisition Sub commences the OfferMerger Consideration, within the meaning of Rule 14d-2 under the Exchange Actprovided, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I.
(b) Subject to Section 2.1(e), as promptly as practicable on the later of that (i) it shall be a condition to the earliest date as obligation of which Acquisition Sub is permitted under applicable Law the Tender Offeror to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably accept pay for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Acquisition Sub to irrevocably accept for purchase Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the irrevocable acceptance for purchase of any shares of Company Common Stock tendered pursuant to in the Offer, Acquisition Sub tender offer that there shall pay for all shares of Company Common Stock have been validly tendered and not properly withdrawn pursuant prior to the Offer.
(c) Notwithstanding anything to the contrary contained in this Agreement, Parent and Acquisition Sub expressly reserve the right to waive any condition to the Offer (to the extent permitted under applicable Laws) or modify any expiration date of the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Sub shall:
(i) amend, modify or waive the Minimum Condition;
(ii) decrease the tender offer that number of shares of Company Common Stock sought which, when added to be purchased any shares of Company Common Stock owned by Acquisition Sub Parent and Merger Sub, represents 90% or greater of the issued and outstanding shares of Company Common Stock (such condition, the "Minimum Condition"), (ii) except for the Minimum Condition, the obligation of the Tender Offeror to accept for payment and pay for shares of Company Common Stock tendered in the Offer;
tender offer shall not be more conditional than the obligation of Parent and Merger Sub to consummate the Merger, (iii) reduce Parent, Merger Sub and/or the Offer Price Tender Offeror shall be obligated to consummate (except x) the Merger or (y) a merger providing for cash consideration at least equal to the extent required pursuant Merger Consideration and which shall otherwise be on terms and conditions no less favorable to Section 2.1(f));
the holders of shares of Company Common Stock than the Merger, (iv) increase the Offer Pricetender offer shall comply with all applicable laws, except in response to a Change in Recommendation or a Superior Proposal Notice;
including the Exchange Act, Sections 14(d) and 14(e) thereof and the rules, regulations and schedules promulgated thereunder, and (v) extend the Tender Offeror shall not be required to accept for payment or otherwise change pay for any validly tendered shares if, at the expiration date of the Offer tender offer the conditions set forth in Section 6.1 (except to the extent required or permitted pursuant to other than Section 2.1(e6.1(a));
(vi) change the form of consideration payable in the Offer;
(vii) impose any condition to the Offer in addition to the Offer Conditions;
(viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or
(ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to and Section 251(h) of the DGCL.
(d) Unless extended pursuant to and in accordance with the terms 6.2 of this Agreement, the Offer Agreement shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the “Expiration Date”).
(e) Notwithstanding anything to the contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not have been satisfied or any waived. The expiration date of the other Offer Conditions has tender offer shall not been satisfied, or waived by Parent or Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend be earlier than 60 calendar days after the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Acquisition Sub to waive any Offer Condition, other than the Minimum Condition)date hereof; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to if a date later than the End Date; and (ii) Acquisition Sub shall extend the Offer Third Party commences a tender offer for the minimum period required by applicable Law, interpretation or position 50% of more of the SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer and the Expiration Date to a date later than the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any outstanding shares of Company Common Stock pursuant Stock, the tender offer by the Tender Offeror may expire one (1) Business Day prior to the Offer initial expiration date of such other tender offer. The parties hereto shall (a) negotiate in good faith and shall cause as expeditiously as practicable any depository acting on behalf and all amendments, modifications or waivers of Acquisition Sub this Agreement and the Confidentiality Agreement necessary or appropriate to returnimplement this Section 5.16, (b) make any and all amendments or modifications to the Proxy Statement, (c) make any and all filings with or submissions to (and/or make any and all amendments or modifications to existing filings or submissions), and seek any and all consents, authorizations and permits from, any Governmental Entity necessary or appropriate in accordance with applicable light of the tender offer, including under any Antitrust Law, other applicable law or otherwise, and (d) otherwise take any and all tendered shares actions necessary or appropriate to implement this Section 5.16 and to ensure the Merger and the tender offer comply with all applicable laws and are consummated. For avoidance of doubt, the Company Common Stock acknowledges that the representations and warranties set forth in Sections 3.1(v) and 3.1(y) apply to the registered holders thereof.tender offer described in this
Appears in 1 contract
Samples: Agreement and Plan of Merger (AI Chemical Investments LLC)
