Common use of Tender Offer Clause in Contracts

Tender Offer. (a) The Company shall cause the commencement (as such term is defined in Rule 13e-4(a)(4) under the Exchange Act) of the Tender Offer to purchase 37,037,037 shares of Common Stock, at a price per share equal to $27, net to the seller in cash, no later than the date specified in Schedule 8.07. Unless Purchaser shall otherwise agree, the Company's obligation to complete the Tender Offer shall be subject only to the conditions (the "Offer Conditions") set forth in Schedule 8.07. Subject to the provisions hereof, the Tender Offer shall expire on the date set forth in Schedule 8.07; provided that the Tender Offer shall be extended from time to time if the Offer Conditions shall not have been satisfied, so long as this Agreement shall remain in effect. (b) On the date of commencement of the Tender Offer, the Company shall file with the SEC an Issuer Tender Offer Statement on Schedule 13E-4 with respect to the Tender Offer (the "Tender Offer Statement"), which shall contain an offer to purchase and a related letter of transmittal (such Tender Offer Statement and the documents therein pursuant to which the Tender Offer will be made, together with any supplements or amendments thereto, are referred to hereinafter as the "Offer Documents"). After the Offer Documents are filed with the SEC, the Company shall disseminate the Offer Documents to the stockholders of the Company. If at any time prior to the expiration of the Tender Offer there shall occur any event that should be set forth in an amendment or supplement to the Offer Documents, the Company will prepare and file with the SEC and disseminate to its stockholders such an amendment or supplement.

Tender Offer. (a) The If the Company shall cause the commencement (as such term is defined in Rule 13e-4(a)(4) under the Exchange Act) of the Tender Offer to purchase 37,037,037 shares of Common Stock, at a price per share equal to $27, net to the seller in cash, no later than the date specified in Schedule 8.07. Unless Purchaser shall otherwise agree, the Company's obligation to complete the Tender Offer shall be subject only to the conditions (the "Offer Conditions") set forth in Schedule 8.07. Subject to the provisions hereof, the Tender Offer shall expire on the date set forth in Schedule 8.07; provided that the Tender Offer shall be extended from time to time if the Offer Conditions Requisite Vote shall not have been satisfiedobtained at the Shareholders Meeting or any adjournment or postponement thereof permitted hereunder, so long as then Parent, Merger Sub or any of their Affiliates may at any time, during the fifteen (15) business day period beginning the business day after date of the Shareholder Meeting or any adjournment or postponement thereof permitted hereunder (the “Tender Offer Commencement Period”), elect to commence a tender offer for 83.958% of the Shares held by each shareholder of the Company (a “Tender Offer”). Such Tender Offer and the consummation thereof shall be subject to all of the terms and conditions of this Agreement and will be conducted pursuant to applicable Law. In the event that Parent, Merger Sub or any of their Affiliates elect to commence a Tender Offer, the “Termination Date” hereunder shall remain in effect. be automatically amended without any action of the parties hereto to be the later of (bx) On March 31, 2007 and (y) the date that is sixty (60) days after the date of commencement of the Tender Offer. If a Tender Offer is commenced, (i) the Company shall file cooperate with the SEC an Issuer Tender Offer Statement on Schedule 13E-4 Parent, Merger Sub and their Affiliates in connection with respect to the Tender Offer (including by executing any agreements and other documents at the "Tender Offer Statement")reasonable request of Parent, which Merger Sub or any of their Affiliates) and shall contain an offer to purchase provide Parent, Merger Sub and a related letter their Affiliates with all information reasonably requested by Parent, Merger Sub or any of transmittal (such Tender Offer Statement and the documents therein pursuant to which their Affiliates in connection with the Tender Offer will be made, together with any supplements or amendments thereto, are referred to hereinafter as and (ii) the "Offer Documents"). After the Offer Documents are filed with the SEC, board of directors of the Company shall disseminate recommend that the Offer Documents to the stockholders shareholders of the Company. If at any time prior to the expiration of Company tender their Shares into the Tender Offer there shall occur any event that should be set forth in an amendment or supplement to the Offer Documents, the Company will prepare and file with the SEC and disseminate to its stockholders such an amendment or supplementOffer.

Tender Offer. (a) The Company Provided that this Agreement shall cause the commencement (as such term is defined not have been terminated in Rule 13e-4(a)(4) under the Exchange Act) accordance with Article IX hereof and none of the Tender Offer to purchase 37,037,037 shares events set forth in Annex A hereto shall have occurred or be existing, within five business days of Common Stockthe date hereof, the Purchaser will commence a tender offer (the "Offer") for all of the outstanding Shares that the Parent does not own at a price of $10.25 per share equal to $27Share in cash, net to the seller in cashseller, no later than the date specified in Schedule 8.07. Unless Purchaser shall otherwise agree, the Company's obligation to complete the Tender Offer shall be subject only to the conditions (the "Offer Conditions") set forth in Schedule 8.07Annex A hereto. Subject to the provisions hereofterms and conditions of the Offer, the Tender Purchaser will promptly pay for all Shares duly tendered that it is obligated to purchase thereunder. The Company's Board of Directors and a majority of the Company's Independent Directors (as defined below) shall recommend acceptance of the Offer shall expire to its stockholders in a Solicitation/Recommendation Statement on the date set forth in Schedule 8.07; provided that the Tender Offer shall 14D-9 (as such statement may be extended amended or supplemented from time to time time, the "Schedule 14D-9") to be filed with the Securities and Exchange Commission (the "SEC") upon commencement of the Offer; provided, however, that if the Company's Board of Directors determines that its fiduciary duties require it to amend or withdraw its recommendation, such amendment or withdrawal shall not constitute a breach of this Agreement. The Purchaser will not without the prior written consent of the Company decrease the price per Share or change the form of consideration payable in the Offer, decrease the number of Shares sought, change the conditions to the Offer Conditions or waive the Minimum Tender Condition (as defined on Annex A hereto). The Purchaser shall not terminate or withdraw the Offer or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Offer set forth on Annex A hereto shall not have been satisfied, so long as this Agreement shall remain in effectsatisfied or waived. (b) On the date of commencement of the Tender Offer, the Company shall file with the SEC an Issuer Tender Offer Statement on Schedule 13E-4 with respect to the Tender Offer (the "Tender Offer Statement"), which shall contain an offer to purchase and a related letter of transmittal (such Tender Offer Statement and the documents therein pursuant to which the Tender Offer will be made, together with any supplements or amendments thereto, are referred to hereinafter as the "Offer Documents"). After the Offer Documents are filed with the SEC, the Company shall disseminate the Offer Documents to the stockholders of the Company. If at any time prior to the expiration of the Tender Offer there shall occur any event that should be set forth in an amendment or supplement to the Offer Documents, the Company will prepare and file with the SEC and disseminate to its stockholders such an amendment or supplement.

Tender Offer. 7.7.1. Within five (a5) The Company business days after the date hereof, Purchaser shall cause commence the commencement (as such term is defined in Rule 13e-4(a)(4) under the Exchange Act) of the Tender Offer to purchase 37,037,037 up to 3,596,688 shares of Common Stock, at a price per share equal to $27, net to the seller in cash, no later than the date specified in Schedule 8.07. Unless Purchaser shall otherwise agree, the Company's obligation to complete Common Stock (the "Maximum Tender Number") at $90 per share in cash (the "Offer shall be Price"), subject only to the conditions (the "Offer Conditions") set forth in Schedule 8.07. Subject to the provisions hereof, the Tender Offer shall expire on the date set forth in Schedule 8.07; provided that the Tender Offer shall be extended from time to time if the Offer Conditions shall not have been satisfied, so long as this Agreement shall remain in effectAnnex A ------- hereto. (b) 7.7.2. On the date of commencement of the Tender Offer, the Company Purchaser shall file with the SEC an Issuer a Tender Offer Statement on Schedule 13E-4 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Tender Offer (the "Tender Offer Statement"), which Offer. The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and a forms of the related letter of transmittal and any related summary advertisement (the Schedule 14D-1, the Offer to Purchase and such Tender Offer Statement and the documents therein pursuant to which the Tender Offer will be madeother documents, together with any all supplements or and amendments thereto, are being referred to hereinafter herein collectively as the "Offer Documents"). After Purchaser and the Company agree to promptly correct any information provided by either of them for use in the Offer Documents are which shall have become false or misleading, and Purchaser further agrees to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC, the Company shall disseminate the Offer Documents to the stockholders of the Company. If at any time prior to the expiration of the Tender Offer there shall occur any event that should be set forth in an amendment or supplement to the Offer Documents, the Company will prepare and file with the SEC and disseminate the other Offer Documents as so corrected to be disseminated to holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. Purchaser agrees to provide the Company with a written copy of any comments it or its stockholders counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-1 promptly after receipt of such an amendment comments. 7.7.3. Purchaser shall not, without the prior written consent of the Company, (i) terminate the Offer other than in accordance with its terms, (ii) extend the Expiration Date to a date later than August 31, 1999, or supplement(iii) amend the Offer, other than as permitted in Annex A; provided, however, ------- -------- ------- it is understood that i) Purchaser shall have the right to close the Offer and accept and pay for tendered shares of Common Stock at any time it may be permitted to under applicable law, (ii) Purchaser is not obligated to keep the Offer open until the Stockholders Meeting occurs and (iii) in the event that the Second Issuance Agreements are terminated, Purchaser may elect, in its sole discretion, to continue to conduct the Offer and may increase the Maximum Tender Number to 5,000,000 shares of Common Stock. 7.7.4. The Company's obligations hereunder shall not be conditioned on the number of shares tendered to Purchaser. Purchaser shall purchase all shares of Common Stock tendered pursuant to the Offer up to the Maximum Tender Number. Purchaser shall not have any right hereunder to acquire the Second Issuance Shares if Purchaser fails to acquire in contravention of the terms of Annex A all shares of Common Stock tendered pursuant to the Offer up to ------- the Maximum Tender Number.

Tender Offer. (a) The Provided that this Agreement shall not have been terminated in accordance with Section 8.1, not later than twenty (20) business days prior to the Closing, the Company shall cause commence (within the commencement (as such term is defined in meaning of Rule 13e-4(a)(4) 13e-4 under the Exchange Act) the Tender Offer, and the Company shall use all reasonable efforts to consummate the Tender Offer immediately after the Closing of the Transaction. The Company shall accept for payment all shares of Common Stock that have been validly tendered and not withdrawn pursuant to the Tender Offer (subject to proration as provided therein in the event more than Seventeen Million Three Hundred Thousand (17,300,000) shares are so tendered and not withdrawn) at the earliest time following expiration of the Tender Offer that all conditions to the Tender Offer shall have been satisfied or waived by the Company. The obligation of the Company to accept for payment, purchase 37,037,037 and pay for shares of Common Stock, at a price per share equal Stock tendered pursuant to $27, net to the seller in cash, no later than the date specified in Schedule 8.07. Unless Purchaser shall otherwise agree, the Company's obligation to complete the Tender Offer shall be subject only to the conditions that (the "Offer Conditions"i) set forth in Schedule 8.07. Subject pursuant to the provisions hereofConsent Solicitation, the company has received the consent of the holders of the required principal amount of the Notes so that neither the Tender Offer nor the Tender Offer Borrowings will constitute a Default or an Event of Default under the Indenture, (ii) the Credit Agreement Amendment has been executed with the effect that none of the Transaction, the Tender Offer shall expire on the date set forth in Schedule 8.07; provided that or the Tender Offer shall be extended from time to time if Borrowings will constitute a Default or an Event of Default under the Offer Conditions shall not have Credit Agreement as so amended, (iii) the Transaction has been satisfied, so long as this Agreement shall remain in effect. (b) On approved by the date affirmative vote of commencement of the Tender Offer, the Company shall file with the SEC an Issuer Tender Offer Statement on Schedule 13E-4 with respect to the Tender Offer (the "Tender Offer Statement"), which shall contain an offer to purchase and a related letter of transmittal (such Tender Offer Statement and the documents therein pursuant to which the Tender Offer will be made, together with any supplements or amendments thereto, are referred to hereinafter as the "Offer Documents"). After the Offer Documents are filed with the SEC, the Company shall disseminate the Offer Documents to the stockholders of the Company. If at any time prior to the expiration of the Tender Offer there shall occur any event that should be set forth in an amendment or supplement to the Offer Documents, the Company will prepare and file with the SEC and disseminate to its stockholders such an amendment or supplement.a

Tender Offer. As promptly as practicable following the date of this Agreement, the Company shall commence a tender offer (the “Tender Offer”) to amend, at the election of the applicable option holder, certain portions of Company Options that (a) The Company shall cause were not vested before January 1, 2005 and (b) were not exercised before the commencement (as such term is defined in Rule 13e-4(a)(4) under the Exchange Act) of the Tender Offer Offer. The purpose of such amendment of portions of the Company Options shall be to purchase 37,037,037 shares either exempt such portions from the application of Common Stock, at a price per share equal Section 409A of the Code or to $27, net cause such portions to comply with Section 409A of the seller in cash, no later than the date specified in Schedule 8.07Code. Unless Purchaser shall otherwise agree, the Company's obligation to complete The terms and conditions of the Tender Offer shall be subject only to the conditions (the "Offer Conditions") set forth in Schedule 8.07an offering memorandum (the “Offering Memorandum”) and distributed to such holders of Company Options at the time the Tender Offer is commenced. Subject The Offering Memorandum and any other materials to be distributed in connection with the Tender Offer shall be in substantially the form reviewed by Parent prior to the provisions date hereof, without any material changes thereto. The Tender Offer shall be held open for no less than 20 business days from the date the Offering Memorandum is first sent to holders of Company Options and the Tender Offer shall expire on at the date set forth in Schedule 8.07; provided that end of such 20 business-day period or, if the Tender Offer shall be is extended from time to time if by the Offer Conditions shall not have been satisfiedCompany, so long as this Agreement shall remain in effect. (b) On the on a later date of commencement of the Tender Offer, the Company shall file with the SEC an Issuer Tender Offer Statement on Schedule 13E-4 with respect to the Tender Offer thereafter (the "Tender Offer Statement"“Expiration Date”), which shall contain an offer to purchase and a related letter of transmittal (such Tender Offer Statement and the documents therein pursuant to which the Tender Offer will be made, together with any supplements or amendments thereto, are referred to hereinafter as the "Offer Documents"). After the Offer Documents are filed with the SEC, the Company shall disseminate the Offer Documents to the stockholders of the Company. If at any time prior to the expiration of the Tender Offer there shall occur any event that should be set forth in an amendment or supplement to the Offer Documents, the Company will prepare and file with the SEC and disseminate to its stockholders such an amendment or supplement.

Tender Offer. (a) The Company Provided that this Agreement shall cause the commencement (as such term is defined not have been terminated in Rule 13e-4(a)(4) under the Exchange Act) accordance with Article IX hereof and none of the Tender events set forth in Annex A hereto (the "Offer to purchase 37,037,037 Conditions") shall have occurred or be existing, within five business days of the date hereof, Merger Sub will commence a tender offer (the "Offer") for all of the outstanding shares of Common Stockcommon stock, par value $0.01 per share (the "Shares"), of the Company at a price of $4.00 per share equal to $27Share in cash, net to the seller in cash, no later than seller. The obligation of Merger Sub to accept for payment and pay for any Shares tendered pursuant to the date specified in Schedule 8.07. Unless Purchaser shall otherwise agree, the Company's obligation to complete the Tender Offer shall be subject only to the conditions (satisfaction or waiver of the "Offer Conditions". It is understood and agreed that Merger Sub may from time to time extend the expiration date of the Offer after all of the Offer Conditions have been satisfied or waived for a period of up to thirty (30) set forth business days (or a greater period with the consent of the Company) if it reasonably determines such extension is appropriate in Schedule 8.07order to enable it to purchase at least 90% of the outstanding Shares in the Offer. Subject to the provisions hereofterms and conditions of the Offer, the Tender Offer shall expire on the date set forth in Schedule 8.07; provided that the Tender Offer shall be extended from time Parent will promptly pay for all Shares validly tendered and not withdrawn pursuant to time if the Offer Conditions shall not have been satisfied, so long as this Agreement shall remain in effect. (b) On the date of commencement of the Tender Offer, the Company shall file with the SEC an Issuer Tender Offer Statement on Schedule 13E-4 with respect to the Tender Offer (the "Tender Offer Statement"), which shall contain an offer that it is obligated to purchase and a related letter of transmittal (such Tender Offer Statement and the documents therein pursuant to which the Tender Offer will be made, together with any supplements or amendments thereto, are referred to hereinafter thereunder as the "Offer Documents"). After the Offer Documents are filed with the SEC, the Company shall disseminate the Offer Documents to the stockholders of the Company. If at any time prior to soon as practicable after the expiration of the Tender Offer there Offer. The Company's Board of Directors shall occur any event that should be set forth in an amendment or supplement to recommend acceptance of the Offer Documents, the Company will prepare and file with the SEC and disseminate to its stockholders such an amendment in a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") to be filed with the Securities and Exchange Commission (the "SEC") upon commencement of the Offer; provided, however, that the Company's Board of Directors may thereafter amend or supplementwithdraw its recommendation in accordance with Section 7.2.