Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to: (i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and (ii) the other conditions set forth in Annex A.
Appears in 4 contracts
Samples: Merger Agreement (Hewlett Packard Co), Merger Agreement (Hewlett Packard Co), Merger Agreement (Dell Inc)
Terms and Conditions of the Offer. (i) Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)VI, as promptly as practicable after the date hereof (but in no event more than ten five (5) Business Days thereafterafter the date hereof), Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the outstanding Company Shares at a price Shares.
(ii) In the Offer, each Company Share accepted by Purchaser in accordance with the terms and subject to the conditions of the Offer and in compliance with applicable Law shall be exchanged for the right to receive, in each case subject to the other provisions of this Article I and subject to reduction for any applicable withholding taxes in respect thereof, without interest (collectively, the “Tender Offer Consideration”):
(1) cash in an amount equal to US $42.28 per Company Share, subject ; plus
(2) the right to the terms of Section 2.1(c), receive from Purchaser cash in an amount equal to the Offer PricePer Share Xxxxxx Payable Amount, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. if any.
(iii) The Offer shall be made by means of an offer Offer to purchase all outstanding Company Shares Purchase, substantially in the form attached hereto as Annex C (the “Offer to Purchase”) ), that is disseminated to all of the holders of Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub Shares. Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The .
(iv) Purchaser’s rights and obligations to accept for payment or pay for any Company Shares that are validly tendered in the Offer and not withdrawn shall be subject only to:to the following conditions having been satisfied or waived by the Purchaser (collectively, the “Offer Conditions”):
(i1) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub Purchaser (if any), represents equals at least a majority 3,361,763 Company Shares, representing at least 67% of all then outstanding Company Shares on a fully diluted basisShares;
(2) the condition that any pre-closing approvals or clearances reasonably required under any applicable Antitrust Laws shall have been obtained and any applicable waiting periods under any applicable Antitrust Laws shall have expired or been terminated;
(3) the condition that no Governmental Entity of competent jurisdiction shall have (A) enacted, assuming issued or promulgated any Law that is in effect as of immediately prior to the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer Offer, or (B) issued or granted any order or injunction that is in effect as of immediately prior to the expiration of the Offer, that, in each case, has the effect of restraining, enjoining or otherwise prohibiting the consummation of the Offer;
(4) the condition that the representations or warranties of the Company set forth in Article II shall be true and correct in all material respects as of the date of this Agreement and immediately prior to the Acceptance Time, except, in each case, to the extent a representation or warranty is made as of a specific date, then as of such date;
(5) the condition that the Company shall have performed and complied in all material respects with its obligations under this Agreement that, by their terms, are to be performed or complied with by the Company prior to the Acceptance Time;
(6) the condition that no Company Material Adverse Effect shall have occurred after the date of this Agreement and prior to the Acceptance Time;
(7) the condition that the Company shall have completed all of the actions contemplated by the Prospector Rig Acquisition in accordance with Section 5.9 (it being agreed that the terms reference to the use of reasonable best efforts in such section does not apply to determine compliance with this condition);
(8) the condition that the rig delivery protocol set forth in Annex D shall have been completed with respect to each of the Prospector Rigs and conditions delivered to Purchaser immediately prior to the Acceptance Time and, as a result thereof, there shall have been no (A) adverse findings in respect thereof or (other than B) reporting requirement of the Top-Up Option)type described in paragraph (4) of Annex D in respect of any incident in respect of either Prospector Rig; and
(ii9) the condition that this Agreement shall not have been terminated in accordance with Section 6.1.
(v) In the event this Agreement is terminated pursuant to Section 6.1 prior to the Acceptance Time, Purchaser shall promptly terminate the Offer without accepting any Company Shares previously tendered and shall promptly return, and shall cause the transfer agent (or any other conditions set forth in Annex A.applicable agent) to promptly return, all tendered share certificates representing Company Shares to the holders thereof.
Appears in 3 contracts
Samples: Tender Offer Agreement (Borr Drilling LTD), Tender Offer Agreement (Borr Drilling LTD), Tender Offer Agreement
Terms and Conditions of the Offer. Provided (a) Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)Section 10.1, as promptly as practicable after the date hereof (but in no event more than ten (10) Business Days thereafter), Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer Offer. In the Offer, each share of Company Stock accepted by Purchaser in accordance with the terms and subject to purchase any and all the conditions of the Company Shares at a price per Company ShareOffer shall be exchanged for the right to receive the Offer Consideration, subject to the terms other provisions of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9this Article II. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the holders of shares of Company Stockholders Stock pursuant to the Exchange Act and contains the terms and conditions of the Offer as set forth in this Agreement and in Annex A. Each of Purchaser shall (and Parent and Acquisition Sub shall use its reasonable best efforts to cause Purchaser to) consummate the Offer, Offer subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be being validly tendered (and not withdrawn validly withdrawn) in accordance with the terms of the Offer a number of shares of Company Shares Stock that, together with the shares (if any) of Company Shares Stock then owned by Parent and Acquisition Sub Purchaser or any of their Subsidiaries (if anyexcluding shares of Company Stock tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures), represents at least a majority of all then outstanding shares of Company Shares on a fully diluted basis, assuming Stock at the issuance time of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with (the terms and conditions thereof (other than the Top-Up Option“Minimum Condition”); and
(ii) the other conditions set forth in Annex A.
(b) Purchaser expressly reserves the right to waive or modify any of the conditions to the Offer and to make any change in the terms of, or conditions to, the Offer; provided, however, that without the prior written consent of the Company in its sole discretion, Purchaser may not (and Parent shall not permit Purchaser to) (i) waive any of the conditions set forth in clauses (a), (b), (c), or (d)(vi) of Annex A, (ii) make any change in the terms of or conditions to the Offer that (A) changes the form or amount of consideration to be paid in the Offer (provided, however, that Purchaser may increase the amount of such consideration, but in no event shall such increase reduce the Offer Consideration and provided that such increase is not for the primary purpose of delaying the Acceptance Time), (B) decreases the number of shares of Company Stock sought in the Offer, (C) extends the Offer, other than in a manner required or permitted by the provisions of Section 2.2(b), (D) imposes conditions to the Offer other than those set forth in Annex A or (E) amends or modifies any other term of or any condition to the Offer in any manner that is adverse to the holders of shares of Company Stock or (iii) provide for a “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Meredith Corp), Merger Agreement (Time Inc.)
Terms and Conditions of the Offer. Provided Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been validly terminated pursuant to Article X IX and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A Company shall have occurred and be existing (and shall not have been waived by Parent)complied in all material respects with its obligations under Section 1.2, as promptly as practicable after the date hereof (but in no event more than ten twenty (20) Business Days thereafter), Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer Offer. In the Offer, each share of Company Common Stock accepted by Purchaser in accordance with the terms and subject to purchase any and all the conditions of the Company Shares at a price Offer shall be exchanged for 1.103 shares of common stock, par value $0.001 per Company Shareshare, of Parent “Parent Common Stock”), without interest (the “Offer Consideration”), subject to the terms other provisions of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. this Article I. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all holders of Company Common Stock pursuant to the Company Stockholders Exchange Act and contains contains, to the extent required by the Exchange Act, the terms and conditions set forth in this Agreement and in (including Annex A. C). Each of Parent and Acquisition Sub Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof(including Annex C). The obligation of Purchaser to accept for exchange (and the obligation of Parent to cause Purchaser to accept for exchange) shares of Company Common Stock validly tendered (and not validly withdrawn) pursuant to the Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be have been validly tendered and not validly withdrawn in accordance with the terms of the Offer a number of shares of Company Shares Common Stock that, upon the consummation of the Offer (for the avoidance of doubt, assuming that shares of Class B Common Stock validly tendered (and not validly withdrawn) will convert into shares of Class A Common Stock upon the consummation of the Offer), together with the shares of Company Shares Common Stock then owned by Parent and Acquisition Sub Purchaser (if any) (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures), represents would represent at least a majority of all then the aggregate voting power of the shares of Company Common Stock outstanding Company Shares on a fully diluted basis, assuming immediately after the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration consummation of the Offer in accordance with (the terms and conditions thereof (other than the Top-Up Option“Minimum Condition”); and
(ii) the other conditions set forth in Annex A.C.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Tableau Software Inc), Agreement and Plan of Merger (Salesforce Com Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, are subject to the terms and conditions of Section 2.1(c)this Agreement, equal to including the Offer Priceprior satisfaction of the Minimum Condition and the satisfaction or waiver of the other conditions set forth in Annex I (collectively, provided that Parent and Acquisition Sub shall not as they may be required to commence, or cause to be commencedamended in accordance with the terms of this Agreement, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right, in its sole discretion, to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in this Agreement the Offer (other than by adding additional consideration (and solely with respect to any such additional consideration)), (C) decrease the maximum number of Shares sought to be purchased in Annex A. Each the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or delay the consummation of the Offer or prevent, delay or impair the ability of Parent and Acquisition Sub shall use its reasonable best efforts or Purchaser to consummate the Offer, subject to the terms and conditions hereof and thereofMerger or the other Transactions, (F) change or waive the Minimum Condition, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement or (H) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 2 contracts
Samples: Merger Agreement (Merck & Co., Inc.), Merger Agreement (Immune Design Corp.)
Terms and Conditions of the Offer. Provided Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)IX, as promptly as practicable after the date hereof (but in no event more than ten Business Days twenty (20) business days thereafter), Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer Offer. In the Offer, each Company Share accepted by Purchaser in accordance with the terms and subject to purchase any and all the conditions of the Company Shares at Offer shall be exchanged for the right to receive (i) $10.15 in cash (the “Cash Consideration”) and (ii) 0.2065 of a price per Company Sharevalidly issued, fully paid and non-assessable share of Parent Common Stock (the “Stock Consideration” and, together with the Cash Consideration, the “Offer Consideration”), subject to the terms other provisions of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. this Article I. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the holders of Company Stockholders Shares pursuant to the Exchange Act and contains the terms and conditions set forth in this Agreement and in Annex A. B. Each of Parent and Acquisition Sub Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be being validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub Purchaser (if any) (excluding Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming (the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option“Minimum Condition”); and
(ii) the other conditions set forth in Annex A.B.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Homeaway Inc), Agreement and Plan of Reorganization (Expedia, Inc.)
Terms and Conditions of the Offer. Provided that Subject to the terms and conditions of this Agreement shall not have been terminated pursuant to Article X and that none Agreement, including the prior satisfaction of the events or circumstances conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the “Offer Conditions”), as promptly soon as practicable after the date hereof (but in no event more than ten Business Days thereafter)Expiration Date, Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) consummate the Offer to purchase any in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all of the Company Shares at a price per Company Share, subject validly tendered and not properly withdrawn pursuant to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Offer. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains terms not inconsistent with those set forth in this Agreement. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and Offer not withdrawn in accordance inconsistent with the terms of this Agreement; provided, however, that without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer a Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Company Shares thatsought to be purchased in the Offer, together with (D) impose conditions to the Company Shares then owned by Parent and Acquisition Sub Offer in addition to the Offer Conditions, (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion E) amend or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration modify any of the Offer Conditions in a manner that adversely affects holders of Shares (collectively, the “Company Stockholders”) generally in their capacity as such or (F) amend, modify or waive the Minimum Condition, as defined in Annex I. The Offer may not be terminated prior to the Expiration Date (or any rescheduled Expiration Date) of the Offer without the prior written consent of the Company, unless this Agreement is terminated in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 2 contracts
Samples: Merger Agreement (Ikanos Communications, Inc.), Merger Agreement (Ikanos Communications, Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to (and of Parent to cause Purchaser to) accept for payment, and pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X and that none the Offer shall be subject to the satisfaction or waiver (to the extent permitted under applicable Legal Requirements) of the events or circumstances conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the “Offer Conditions”), as promptly as practicable after the date hereof (but in and no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9other conditions. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all (i) increase the amount of cash constituting the Company Stockholders Offer Price, (ii) waive any Offer Condition (to the extent permitted under applicable Legal Requirements) and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer (provided that nothing herein shall limit the ability of Parent and Purchaser to increase the cash consideration payable in the Offer), (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clause (e) or (g) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects, or would reasonably be expected to adversely affect any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts to consummate capacity as such, (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Sections 1.1(c) or 1.1(d) or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 2 contracts
Samples: Merger Agreement (Gilead Sciences Inc), Merger Agreement (Forty Seven, Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none The obligation of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (within the meaning , and of Rule 14d-2 promulgated under the Exchange Act) Parent to cause Merger Sub to, accept for payment and to pay for any shares of Company Common Stock tendered in the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer withdrawn shall be subject only to:
: (i) the condition (the “Minimum Condition”) that, prior to the then scheduled expiration date of the OfferOffer (as it may be extended from time to time pursuant to Section 2.1(d)), there be validly tendered and not withdrawn in accordance with the terms of the Offer and not withdrawn a number of shares of Company Shares Common Stock that, together with the shares of Company Shares Common Stock then owned by Parent and Acquisition Merger Sub (if any), represents at least represent a majority of the sum of (x) the number of shares of Company Common Stock then issued and outstanding plus (y) all then outstanding shares of Company Shares on a fully diluted basis, assuming Common Stock that the issuance of all Company Shares that may be issued upon required to issue on or prior to the vestingClosing (regardless of when occurring) as a result of the vesting (including vesting solely as a result of the consummation of the Offer), conversion or exercise of all outstanding optionsCompany Options and other derivative securities, including warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof options (other than the Top-Up Option), convertible or exchangeable securities or other rights to acquire Company Common Stock (including any shares of Company Preferred Stock remaining outstanding), regardless of the conversion or exercise price or other terms and conditions thereof (the “Minimum Condition”); and
and (ii) the other conditions set forth in Annex A.A hereto. The conditions to the Offer set forth in Annex A hereto (the “Offer Conditions”) are for the sole benefit of Parent and Merger Sub and may be waived by Parent and Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion, other than the Minimum Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company, in each case subject to the terms and conditions of this Agreement and the applicable rules and regulations of the SEC. Parent and Merger Sub expressly reserve the right to increase the Offer Price or to waive or make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided in this Agreement or previously approved by the Company in writing (in its sole discretion), neither Parent nor Merger Sub may make any change to the terms or conditions of the Offer that (i) decreases the Offer Price, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the number of shares of Company Common Stock sought to be purchased in the Offer, (iv) imposes conditions to the Offer in addition to the conditions to the Offer set forth in Annex A hereto or modifies the conditions set forth in Annex A hereto in any way that is materially adverse to the holders of Company Common Stock, or (v) amends or waives the Minimum Condition.
Appears in 2 contracts
Samples: Merger Agreement (Southwall Technologies Inc /De/), Merger Agreement (Solutia Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)VIII, as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafterafter the date of the initial public announcement of this Agreement), Acquisition Merger Sub shall (and Top Parent, Parent and BBX Intermediate shall cause Acquisition Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company outstanding Shares at a price per Company ShareShare (such date of commencement, the “Offer Commencement Date”), subject to the terms of Section 2.1(c)2.12, equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of the Parent and Acquisition Sub Entities shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The obligation of Merger Sub to, and of Top Parent, Parent and BBX Intermediate to cause Merger Sub to, accept for payment and pay for any Shares tendered pursuant to the Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the OfferExpiration Time, there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by the Parent Entities and Acquisition Sub their respective controlled Affiliates (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming (not including Shares tendered pursuant to guaranteed delivery procedures for which the issuance of all Company underlying Shares that may be issued upon have not yet been “received” by the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that “depositary” as such terms are then, or then scheduled to become, exercisable within ninety (90defined in Section 251(h) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up OptionDGCL); and
(ii) the other conditions set forth in Annex A.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Merger Agreement (Black Box Corp)
Terms and Conditions of the Offer. Provided Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated pursuant to Article X IX and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A Belpointe REIT shall have occurred and be existing (and shall not have been waived by Parent)complied with its obligations under Section 2.2, as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter)hereof, Acquisition Merger Sub shall (and Parent Belpointe PREP shall cause Acquisition Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer Offer. In the Offer, each share of Common Stock accepted by Merger Sub in accordance with the terms and subject to purchase any and all the conditions of the Company Shares at a price per Company ShareOffer shall be exchanged for the right to receive the Consideration, subject to the terms other provisions of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9this Article II. The Offer shall be made by means of an offer to purchase all outstanding Company Shares exchange (the “Offer to PurchaseExchange”) that is disseminated to all holders of Common Stock pursuant to the Company Stockholders Exchange Act and contains the terms and conditions set forth in this Agreement and in (including Annex A. A). Each of Parent Belpointe PREP and Acquisition Merger Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof(including Annex A). The obligation of Merger Sub to accept for exchange (and the obligation of Belpointe PREP to cause Merger Sub to accept for exchange) shares of Common Stock validly tendered pursuant to the Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be have been validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares shares of Common Stock that, upon the consummation of the Offer, together with the Company Shares shares of Common Stock then owned by Parent Belpointe PREP and Acquisition Merger Sub (if any), represents would represent at least a majority of all then the aggregate voting power of the shares of Common Stock outstanding Company Shares on a fully diluted basis, assuming immediately after the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration consummation of the Offer in accordance with (the terms and conditions thereof “Minimum Condition”)
(other than ii) the Top-Up Option)condition that Belpointe REIT shall have terminated its Regulation A Offering promptly upon the written request of Belpointe PREP made at any time following commencement of the Offer; and
(iiiii) the other conditions set forth in Annex A.
Appears in 2 contracts
Samples: Merger Agreement (Belpointe REIT, Inc.), Merger Agreement (Belpointe PREP, LLC)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered and not have been terminated validly withdrawn pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, are subject to the terms and conditions of Section 2.1(c)this Agreement, equal to including the Offer Price, provided that Parent prior satisfaction of the Minimum Condition and Acquisition Sub shall not be required to commence, the satisfaction or cause to be commencedwaiver of the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the terms and conditions hereof and thereofOffer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or reasonably could adversely affect, any holder of Shares, (F) change or waive the Minimum Condition, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement or (H) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 2 contracts
Samples: Merger Agreement (Enel Green Power North America, Inc.), Merger Agreement (Enernoc Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to accept for payment, and pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all satisfaction of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedMinimum Condition, the Termination Condition and the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the Offer Conditions and the other terms set forth in this Agreement. Purchaser expressly reserves the right, to all of the Company Stockholders extent permitted by applicable Legal Requirements, to (i) increase the Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price (other than in a manner required by Section 1.1(g),) (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement clause (e) or (g) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in a manner that materially and adversely affects, or would reasonably be expected to materially and adversely affect, any holder of Shares in Annex A. Each its capacity as such (provided that Purchaser expressly reserves the right but shall not be obligated to waive any of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the OfferOffer Conditions), subject to (G) except as provided in Sections 1.1(c) or 1.1(d), terminate the terms and conditions hereof and Offer or accelerate, extend or otherwise change the Expiration Date or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The In accordance with Section 1.1(d), the Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.1.
Appears in 2 contracts
Samples: Merger Agreement (Cti Biopharma Corp), Merger Agreement (Cti Biopharma Corp)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)VIII, as promptly as practicable after the date hereof (but in no event more than ten (10) Business Days thereafterafter the date hereof), Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the outstanding Company Shares at a price per Company ShareShare (such date, the “Offer Commencement Date”), subject to the terms of Section 2.1(c)2.11, equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject pay for any Company Shares validly tendered (and not validly withdrawn) pursuant to the terms and conditions hereof and thereof. The Offer shall be subject only toto the satisfaction or waiver of:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the OfferExpiration Time, there be shall have been validly tendered and not withdrawn validly withdrawn, in each case, in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent Parent, Merger Sub and Acquisition Sub their respective controlled Affiliates (if any), represents at least a majority represent one more than 50% of the sum of (x) all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all (not including Company Shares that may be issued upon tendered pursuant to guaranteed delivery procedures for which the vesting, conversion or underlying Company Shares have not yet been delivered) plus (y) the aggregate number of Company Shares issuable to holders of Company Options from which the Company has received valid notices of exercise (including payment of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer any applicable exercise price in accordance with the terms of the Company Stock Plans and conditions thereof applicable award agreement) prior to the expiration of the Offer (other than and as to which Company Shares have not yet been issued to such exercising holders of Company Options), plus (z) the Top-Up Optionaggregate number of Company Shares issuable to holders of Company Convertible Notes from which the Company has received valid notices of conversion to Company Shares in accordance with the Company Convertible Notes prior to the expiration of the Offer (and as to which Company Shares have not yet been issued to such exercising holders of Company Convertible Notes); and
(ii) each of the other conditions set forth in Annex A.
Appears in 2 contracts
Samples: Merger Agreement (Raptor Pharmaceutical Corp), Merger Agreement (Horizon Pharma PLC)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, are subject to the terms and conditions of Section 2.1(c)this Agreement, equal to including the Offer Price, provided that Parent prior satisfaction of the Minimum Condition and Acquisition Sub shall not be required to commence, the satisfaction or cause to be commencedwaiver of the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser and Parent expressly reserve the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the terms and conditions hereof and thereofOffer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Shares in its capacity as such, (F) change or waive the Minimum Condition, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement or (H) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 2 contracts
Samples: Merger Agreement (Sucampo Pharmaceuticals, Inc.), Merger Agreement (Mallinckrodt PLC)
Terms and Conditions of the Offer. Provided Subject to applicable law and provided that this Agreement shall not have been validly terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)IX, as promptly as practicable after the date hereof (but in no event more later than ten Business Days thereafterDecember 4, 2015), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Shares. In the Offer, each Company Share, Share accepted by Acquisition Sub in accordance with the terms and subject to the terms conditions of Section 2.1(c), equal to the Offer shall be exchanged for the right to receive $20.00 in cash (the “Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the holders of Company Stockholders Shares and contains the terms and conditions set forth in this Agreement and in Annex A. II. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all (excluding Company Shares tendered pursuant to guaranteed delivery procedures that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90have not yet been “received,” as such term is defined in Section 251(h) days following the then scheduled expiration of the DGCL, by the depositary for the Offer in accordance with the terms and conditions thereof (other than the Top-Up Optionpursuant to such procedures); and
(ii) the other conditions set forth in Annex A.II.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (On Semiconductor Corp), Agreement and Plan of Merger (Fairchild Semiconductor International Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses this Agreement, including the satisfaction of the Minimum Condition, the Termination Condition, and the other conditions set forth in Annex I (C)(1collectively, the “Offer Conditions”) (without limiting the right of Purchaser to terminate, extend or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) modify the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to in accordance with the terms of Section 2.1(cthis Agreement), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price (ii) waive any Offer Condition; and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price; (B) change the form of consideration payable in the Offer; (C) decrease the maximum number of Shares sought to be purchased in the Offer; (D) impose conditions or requirements to the Offer in addition to the Offer Conditions; (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clause (e) or (g) of Annex I; (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts to consummate capacity as such; (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Sections 1.1(c) or 1.1(d); or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 2 contracts
Samples: Merger Agreement (Juno Therapeutics, Inc.), Merger Agreement (Celgene Corp /De/)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant The obligation of Merger Sub to Article X accept for payment and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing to pay for any Shares tendered (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each obligation of Parent to cause Merger Sub to accept for payment and Acquisition Sub shall use its reasonable best efforts to consummate pay for any Shares tendered) in the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
: (i) the condition (the “Minimum Condition”) that, prior to the then scheduled expiration date of the OfferOffer (as it may be extended from time to time pursuant to Section 2.1(d)), there be validly tendered and not withdrawn in accordance with the terms of the Offer and not withdrawn a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Merger Sub (if any), and without giving effect to any treasury shares of Common Stock, represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety more than fifty percent (9050%) days following the then scheduled expiration of the Offer in accordance with Adjusted Outstanding Share Number (the terms and conditions thereof (other than the Top-Up Option“Minimum Condition”); and
and (ii) the other conditions set forth in Annex A.A hereto (together with the Minimum Condition, the “Tender Offer Conditions”). The conditions to the Offer set forth in Annex A hereto are for the sole benefit of Parent and Merger Sub and may be waived by Parent and Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion, other than the Minimum Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company. Parent and Merger Sub expressly reserve the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided in this Agreement or previously approved by the Company in writing, neither Parent nor Merger Sub may make any change to the terms or conditions of the Offer that (A) decreases the Offer Price, (B) changes the form of consideration to be paid in the Offer, (C) reduces the number of Shares sought to be purchased in the Offer, (D) imposes conditions to the Offer in addition to the conditions to the Offer set forth in Annex A hereto, (E) amends the conditions to the Offer set forth in Annex A hereto so as to broaden the scope of such conditions to the Offer, (F) extends the Offer in any manner other than pursuant to and in accordance with the terms of Section 2.1(d), (G) amends or waives the Minimum Condition, or (H) otherwise amends any other term or condition of the Offer in a manner adverse to the holders of Shares.
Appears in 2 contracts
Samples: Merger Agreement (Hologic Inc), Merger Agreement (Third Wave Technologies Inc /Wi)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, are subject to the terms and conditions of Section 2.1(c)this Agreement, equal to including the Offer Price, provided that Parent prior satisfaction of the Minimum Condition and Acquisition Sub shall not be required to commence, the satisfaction or cause to be commencedwaiver of the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, including the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (A) decrease the Closing Amount or amend the terms of the CVR or the CVR Agreement, (B) change the form of the consideration payable in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the terms and conditions hereof and thereofOffer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects any holder of Shares in its capacity as such, (F) change or waive the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 2 contracts
Samples: Merger Agreement (Trius Therapeutics Inc), Merger Agreement (Cubist Pharmaceuticals Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof of this Agreement. The obligations of Purchaser to, and thereofof Parent to cause Purchaser to, irrevocably accept for payment, and pay for, any Shares validly tendered (and not validly withdrawn) pursuant to the Offer are subject only to the terms and conditions of this Agreement, including the prior satisfaction of the Offer Conditions. The Offer shall be subject only made by means of an offer to purchase that is disseminated to all of the holders of Shares pursuant to the Exchange Act and contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions (the “Offer to Purchase”). Purchaser reserves the right to:
: (i) increase the condition Offer Price; (ii) waive any Offer Condition (other than the “Minimum Condition”, the Termination Condition or conditions (d) that, prior (to the expiration extent such waiver would reasonably be expected to adversely affect the Company’s stockholders, directors or officers or require rescission of the Offer, there be validly tendered transactions contemplated hereby under applicable Antitrust Laws) or (f) (to the extent such order or injunction applies against the Acquired Corporations or their respective directors or officers) set forth in Annex I); and (iii) make any other changes in the terms and conditions of the Offer not withdrawn in accordance inconsistent with the terms of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company in its sole and absolute discretion, Parent and Purchaser shall not: (A) decrease the Offer a Price other than in the manner required by Section 1.1(g); (B) change the form of consideration payable in the Offer; (C) decrease the maximum number of Company Shares thatsought to be purchased in the Offer; (D) impose conditions or requirements to the Offer in addition to the Offer Conditions; (E) amend, together with change or waive the Company Shares then owned by Parent and Acquisition Sub Minimum Condition, the Termination Condition or conditions (if anyd) (to the extent such amendment, change or waiver would reasonably be expected to adversely affect the Company’s stockholders, directors or officers or require rescission of the transactions contemplated hereby under applicable Antitrust Laws) or (f) (to the extent such order or injunction applies against the Acquired Corporations or their respective directors or officers) set forth in Annex I; (F) except as provided in Sections 1.1(c) or 1.1(d), represents at least a majority terminate the Offer or accelerate, extend or otherwise change the Expiration Date; (G) provide any “subsequent offering period” (or any extension of all then outstanding Company Shares on a fully diluted basis, assuming such “subsequent offering period”) within the issuance meaning of all Company Shares that may be issued upon Rule 14d-11 promulgated under the vesting, conversion Exchange Act; or exercise (H) otherwise modify or amend any of all outstanding options, warrants, convertible the terms or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration conditions of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.a manner that adversely affects, or reasonably could be expected to adversely affect, any holder of Shares.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to (and of Parent to cause Purchaser to) accept for payment, and pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X and that none the Offer shall be subject to the satisfaction or waiver (to the extent permitted under applicable Legal Requirements) of the events or circumstances conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the “Offer Conditions”), as promptly as practicable after the date hereof (but in and no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9other conditions. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all (i) increase the amount of cash constituting the Company Stockholders Offer Price, (ii) waive any Offer Condition (to the extent permitted under applicable Legal Requirements) and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer (provided that nothing herein shall limit the ability of Parent and Purchaser to increase the cash consideration payable in the Offer), (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clause (e) or (g) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects, or would reasonably be expected to adversely affect any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts to consummate capacity as such, (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Sections 1.01(c) or 1.01(d) or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Article 8.
Appears in 1 contract
Samples: Merger Agreement (Immunomedics Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten three Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) amend the Offer Documents to purchase any and all of the Company Shares at a price per Company Share, subject to reflect the terms of Section 2.1(c)this Agreement (as so amended, equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedincluding any amendments thereto, the “Amended Offer prior to Documents”) and file with the date on which SEC the Company is prepared to file the Schedule 14D-9Amended Offer Documents. The Offer to Purchase included in the Amended Offer Documents shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains contain the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Au
Appears in 1 contract
Samples: Merger Agreement (3PAR Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Purchaser to accept for payment, and pay for, any Shares validly tendered pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedMinimum Condition, the Termination Condition and the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the Offer Conditions and the other terms set forth in this Agreement. Purchaser expressly reserves the right, to all of the Company Stockholders extent permitted by applicable Legal Requirements, to (i) increase the Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price (other than in a manner required by Section 1.1(g)), (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clause (f) or (g) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that would adversely affect any holder of Parent and Acquisition Sub Shares in its capacity as such (provided that Purchaser expressly reserves the right but shall use its reasonable best efforts not be obligated to consummate waive any of the Offer, subject Offer Conditions to the terms and conditions hereof and extent permitted hereunder), (G) except as provided in Sections 1.1(c) or 1.1(d), terminate the Offer or accelerate, extend or otherwise change the Expiration Date or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)8, as promptly as practicable after the date hereof (but in no event more than ten fifteen (15) Business Days thereafter), Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the outstanding Company Shares at a price per Company Share, subject to the terms of Section 2.1(c1.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9without interest. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders as and to the extent required by United States federal securities laws and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Merger Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, irrevocably accept for payment and pay for any Company Shares validly tendered pursuant to the Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, as of immediately prior to the expiration of the OfferExpiration Time, there be validly tendered and not withdrawn in accordance with the terms of the Offer, and “received” by the “depository” for the Offer (as such terms are defined in Section 251(h) of the DGCL), a number of Company Shares that, together with the Company Shares then owned by Parent Parent, Merger Sub and Acquisition Sub any of their respective Affiliates (if anyexcluding shares tendered pursuant to guaranteed delivery procedures that have not yet been “received”, as defined by Section 251(h) of the DGCL), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration as of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option)Expiration Time; and
(ii) the other conditions set forth in Annex A.A (as they may be amended in accordance with this Agreement).
Appears in 1 contract
Samples: Merger Agreement (New Home Co Inc.)
Terms and Conditions of the Offer. Provided that So long as this Agreement shall has not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)IX, as promptly as practicable after following the date hereof (but in no event more than ten Business Days thereafter)of this Agreement, Acquisition Merger Sub shall will (and Parent shall will cause Acquisition Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any all shares of Company Common Stock (it being understood that the Parties will use their respective reasonable best efforts to commence the Offer within 10 Business Days after the date of this Agreement). In the Offer, each share of Company Common Stock that is accepted by Merger Sub in accordance with the terms and all of the Company Shares at a price per Company Share, subject to the terms conditions of Section 2.1(c), the Offer will be exchanged for the right to receive in cash an amount equal to $2.60, without interest thereon (the Offer “Per Share Price, provided that Parent ”) and Acquisition Sub shall not be subject to any deduction or withholding of Taxes required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9by applicable Law. The Offer shall will be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that (A) is disseminated to all of the Company Stockholders as and to the extent required by the Exchange Act and (B) contains the terms and conditions set forth in this Agreement Agreement. The obligations of Merger Sub to accept for payment, and in Annex A. Each pay for, any shares of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject Company Common Stock validly tendered pursuant to the terms and conditions hereof and thereof. The Offer shall be are subject only toto the satisfaction or waiver by Parent or Merger Sub (to the extent permitted under this Agreement) of:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of shares of Company Shares Common Stock that, together with the shares of Company Shares Common Stock then owned by Parent and Acquisition Merger Sub (if any), represents in the aggregate at least a majority one share more than 50% of all then the outstanding shares of Company Shares on a fully diluted basis, assuming Common Stock as of the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in accordance with Section 251(h) of the terms and conditions thereof DGCL, by the depositary for the Offer pursuant to such procedures) (other than the Top-Up Option“Minimum Condition”); and
(ii) the other conditions set forth in Annex A.Exhibit B ((i) and (ii) together, the “Offer Conditions”).
Appears in 1 contract
Samples: Merger Agreement (Rocket Fuel Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none The obligations of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (within the meaning , and of Rule 14d-2 promulgated under the Exchange Act) the Offer Parent to purchase cause Merger Sub to, accept for payment, and pay for, any Shares validly tendered and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal not validly withdrawn pursuant to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, are subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) of this Agreement, including the condition (the “Minimum Condition”) that, prior to the expiration satisfaction of the OfferMinimum Tender Condition, there be validly tendered the Termination Condition and not withdrawn in accordance with the terms satisfaction or waiver of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Exhibit B (the Minimum Tender Condition, the Termination Condition and the other conditions set forth in Exhibit B are referred to collectively as the “Offer Conditions”). Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition or (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that notwithstanding anything to the contrary in this Agreement, without the prior written consent of the Company, neither Parent nor Merger Sub shall (A) reduce the Offer Price, (B) waive, amend or modify the Minimum Tender Condition or the Termination Condition, (C) impose conditions or requirements to the Offer in addition to the Offer Conditions or amend, modify or supplement any Offer Condition in a manner adverse to the holders of the Shares, (D) except as otherwise provided in Section 1.1, extend or otherwise amend or modify the Expiration Time of the Offer, (E) terminate the Offer other than in accordance with this Agreement, (F) change the form of consideration payable in the Offer, (G) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act, or (H) decrease the number of Shares sought to be purchased in the Offer. If, between the date of this Agreement and the Expiration Time, the outstanding Shares are changed into a different number or class of shares by reason of any stock split, divisions, or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price shall be appropriately adjusted.
Appears in 1 contract
Samples: Merger Agreement (Jamba, Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares tendered pursuant to Article X the Offer are subject only to the terms and that none conditions of this Agreement, including the prior satisfaction of the events or circumstances Minimum Condition, the Termination Condition, and the other conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedcollectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and Offer not withdrawn in accordance inconsistent with the terms of this Agreement; provided, however, that notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer a Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Company Shares thatsought to be purchased in the Offer, together with (D) impose conditions or requirements to the Company Shares then owned by Parent Offer in addition to the Offer Conditions, (E) amend, change or waive the Minimum Condition, Termination Condition or conditions “(d)” and Acquisition Sub “(if anyf)” set forth in Annex I, (F) except as provided in Sections 1.1(c) or 1.1(d), represents at least a majority terminate the Offer or accelerate, extend or otherwise change the Expiration Date, (G) provide any “subsequent offering period” (or any extension thereof) within the meaning of all then outstanding Company Shares on a fully diluted basis, assuming Rule 14d-11 promulgated under the issuance Exchange Act or (H) otherwise modify or amend any of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration other terms of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.a manner that adversely affects, or reasonably could be expected to adversely affect, any holder of Shares.
Appears in 1 contract
Samples: Merger Agreement (Pfizer Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none The obligation of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any , and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition to cause Merger Sub shall use its reasonable best efforts to consummate to, upon expiration of the Offer, subject accept for payment and to pay for (after giving effect to any required withholding or stock transfer Tax) any shares of Company Common Stock tendered in the terms Offer and conditions hereof and thereof. The Offer not withdrawn shall be subject only to:
: (i) the condition (the “Minimum Condition”) that, prior to the then scheduled expiration date of the OfferOffer (as it may be extended from time to time pursuant to Section 2.1(d), the “Expiration Date”), there be validly tendered and not withdrawn in accordance with the terms of the Offer and not withdrawn a number of shares of Company Shares Common Stock that, together with when added to the number of shares of Company Shares then Common Stock owned by Parent and Acquisition Merger Sub at the time of the exercise of the Top-Up Option constitutes one share more than fifty percent (if any), represents at least a majority 50%) of all then the sum of (x) the number of shares of Company Common Stock outstanding Company Shares on a fully diluted basis, assuming the immediately prior to issuance of all shares of Company Shares that Common Stock subject to the Top-Up Option plus (y) all shares of Company Common Stock which the Company may be issued upon required to issue on or prior to the vestingClosing as a result of the vesting (including vesting solely as a result of the consummation of the Offer), conversion or exercise of all outstanding optionsCompany Stock Options, warrants, if and only if such securities would be convertible prior to the Closing because their respective conversion or exchangeable securities and similar rights that exercise prices are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of less than the Offer in accordance with Price and the other terms and conditions thereof are otherwise satisfied (other than the Top-Up Option“Minimum Condition”); and
and (ii) the other conditions set forth in Annex A.A hereto. The Minimum Condition and the conditions to the Offer set forth in Annex A hereto (the “Offer Conditions”) are for the sole benefit of Parent and Merger Sub and each of the Offer Conditions other than the Minimum Condition may be waived by Parent and Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion, in each case subject to the terms and conditions of this Agreement and the applicable rules and regulations of the SEC. Parent and Merger Sub expressly reserve the right to increase the Offer Price or to waive or make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided in this Agreement or previously approved by the Company in writing, neither Parent nor Merger Sub may make any change to the terms or conditions of the Offer that (i) decreases the Offer Price or changes the form of consideration to be paid in the Offer, (ii) amends or waives the Minimum Condition, (iii) except as provided in Section 2.1(d), makes any change in the Offer that would require an extension or delay of the then-current Expiration Date, (iv) reduces the number or percentage of shares of Company Common Stock sought to be purchased in the Offer, (v) imposes conditions to the Offer in addition to the conditions to the Offer set forth in Annex A hereto, (v) modifies or amends the Offer Conditions (other than to waive such Offer Conditions, except for the Minimum Condition) in a manner materially adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock or (vi) modifies or amends any other term of this Offer in any manner materially adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.”
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant The obligation of Merger Sub to Article X accept for payment and that none to pay for any shares of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing Company Common Stock tendered (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but obligation of Parent to cause Merger Sub to accept for payment and to pay for any shares of Company Common Stock tendered) in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer withdrawn shall be subject only to:
: (i) the condition (the “Minimum Condition”) that, prior to the then scheduled expiration date of the OfferOffer (as it may be extended from time to time pursuant to Section 2.1(d) hereof), there be validly tendered and not withdrawn in accordance with the terms of the Offer and not withdrawn a number of shares of Company Shares Common Stock that, together with (A) the shares of Company Shares Common Stock then owned by Parent and Acquisition Merger Sub (if any), (B) the shares of Company Restricted Stock that are immediately available to be acquired by Merger Sub immediately following the Acceptance Time pursuant to the Support Agreements and (C) the shares of Company Common Stock underlying the Options that are immediately available to be acquired by Merger Sub immediately following the Acceptance Time pursuant to the Support Agreements, and without giving effect to any treasury shares of Company Common Stock, represents at least a majority more than 50% of the sum of (x) the number of shares of Company Common Stock then issued and outstanding plus (without duplication) (y) except for the Noncompete Shares, all then outstanding shares of Company Shares on a fully diluted basis, assuming Common Stock which the issuance of all Company Shares that may be issued required to issue as of such date upon the vestingvesting (including vesting solely as a result of the consummation of the Offer), conversion or exercise of all outstanding optionsCompany Options, the Company Warrant and other derivative securities, including warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof options (other than the Top-Up Option), convertible or exchangeable securities or other rights to acquire Company Common Stock, regardless of the conversion or exercise price or other terms and conditions thereof (the “Minimum Condition”); and
and (ii) the other conditions set forth in Annex A.A hereto. The conditions to the Offer set forth in Annex A hereto are for the sole benefit of Parent and Merger Sub and may be waived by Parent and Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion, other than the Minimum Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company, in each case on the terms and subject to the conditions of this Agreement and the applicable rules and regulations of the SEC. Parent and Merger Sub expressly reserve the right to increase the Offer Price or to waive or make any other changes to the terms and conditions of the Offer; provided, however, that unless previously approved by the Company in writing, neither Parent nor Merger Sub may make any change to the terms or conditions of the Offer that (1) decreases the Offer Price, (2) changes the form of consideration to be paid in the Offer, (3) reduces the number of shares of Company Common Stock sought to be purchased in the Offer, (4) imposes conditions to the Offer in addition to the conditions to the Offer set forth in Annex A hereto, (5) except as otherwise provided in this Agreement, extends the expiration date of the Offer, (6) amends or waives the Minimum Condition or (7) otherwise amends the Offer in any manner adverse to the holders of Company Common Stock. Parent shall not terminate the Offer prior to any expiration date without the prior written consent of the Company except in the event that this Agreement is validly terminated pursuant to Section 9.1 or Section 9.2.
Appears in 1 contract
Samples: Merger Agreement (Health Grades Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all satisfaction of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedMinimum Condition, the Termination Condition and the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clauses (d) or (f) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts capacity as such, or that would or would reasonably be expected to, individually or in the aggregate, materially impair, prevent or materially delay Parent’s or Purchaser’s ability to consummate the OfferTransactions in a timely manner, subject to (G) terminate the terms and conditions hereof and Offer or accelerate, extend or otherwise change the Expiration Date, in each case, except as provided in Sections 1.1(c) or 1.1(d) or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Samples: Merger Agreement (Constellation Pharmaceuticals Inc)
Terms and Conditions of the Offer. Provided Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated pursuant to Article X IX and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A Company shall have occurred complied with its obligations under this Section 1.1 and be existing (and shall not have been waived by Parent)Section 1.2, as promptly as practicable after the date hereof (but in no event more than ten Business Days twenty (20) business days thereafter), Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any Offer. In the Offer, each Company Share accepted by Purchaser in accordance with the terms and all of the Company Shares at a price per Company Share, subject to the terms conditions of Section 2.1(cthe Offer shall be exchanged for the right to receive, at the election of the holder: (i) $15.85 in cash (the “Cash Consideration”), equal to (ii) 1.5226 shares of Parent Common Stock (the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence“Stock Consideration”), or cause to be commenced(iii) $5.55 in cash and 0.9894 shares of Parent Common Stock (the “Mixed Consideration”) (each of the Cash Consideration, Stock Consideration and Mixed Consideration, as applicable, the “Offer prior Consideration”), in each case subject to proration as set forth in Section 1.1(c) and the date on which the Company is prepared to file the Schedule 14D-9. other provisions of this Article I. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the holders of Company Stockholders Shares as and contains to the extent required by the Exchange Act. The Offer to Purchase will contain the terms and conditions set forth in this Agreement and in Annex A. B. Each of Parent and Acquisition Sub Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be being validly tendered (excluding Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by the depositary for the Offer) and not validly withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub Purchaser (if any), represents at least a majority one (1) Company Share more than two-thirds (66 2/3%) of all then then-outstanding Company Shares on a fully diluted basis, assuming (the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option“Minimum Condition”); and
(ii) the other conditions set forth in Annex A.B.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any Shares tendered pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, are subject to the terms and conditions of Section 2.1(c)this Agreement, equal including the satisfaction of the Minimum Condition and the satisfaction or waiver (to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedextent such waiver is permitted by applicable Law) of the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement. Merger Sub expressly reserves the right, to all of the Company Stockholders extent permitted by applicable Law, to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition, the Termination Condition, the Order Condition, or the Regulatory Condition and contains (iii) make any other changes in the terms and conditions set forth of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in this Agreement and the Offer, (C) decrease the maximum number of Shares sought to be purchased in Annex A. Each the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or could reasonably be expected to adversely affect, any holder of Shares or that could, individually or in the aggregate, reasonably be expected to prevent or delay the consummation of the Offer or prevent, delay or impair the ability of Parent and Acquisition or Merger Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
Merger or the other Transactions, (iF) amend, modify, change or waive the condition (the “Minimum Condition”, the Termination Condition, the Order Condition or the Regulatory Condition, (G) thatterminate the Offer or accelerate, prior to extend or otherwise change the expiration of the OfferExpiration Date, there be validly tendered and not withdrawn except in accordance with Section 2.1(c) or Section 2.1(d), (H) provide any “subsequent offering period” within the terms meaning of Rule 14d-11 promulgated under the Exchange Act or (I) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 321(f) of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.PBCL.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any Shares validly tendered pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all satisfaction of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedMinimum Condition, the Termination Condition and the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Merger Sub expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written Consent of the Company, Parent and Merger Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the condition set forth in this Agreement and clause (f) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts to consummate capacity as such, (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Sections 1.1(c) or 1.1(d) or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Samples: Merger Agreement (Bsquare Corp /Wa)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of the sum of all then outstanding (A) Company Shares on a fully diluted basis, assuming the issuance of all and (B) Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights Options that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of by their terms with a per share exercise price less than the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); andPrice.
(ii) the other conditions set forth in Annex A.A. Acquisition 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, however, that notwithstanding the foregoing or anything to the contrary set forth herein, without the prior written consent of the Company in its sole discretion, Acquisition Sub may not (and Parent shall not permit Acquisition Sub to) (i) waive the Minimum Condition, the condition set forth in clause (A) of Annex A or the condition set forth in clause (C)(1) of Annex A, and (ii) make any change in the terms of or conditions to the Offer that (A) changes the form of consideration to be paid in the Offer, (B) decreases the Offer Price or the number of Company Shares sought in the Offer, (C) extends the Offer, other than in a manner required by the provisions of Section 2.1(d), (D) imposes conditions to the Offer other than those set forth in Annex A, (E) modifies the conditions set forth in Annex A, or (F) amends any other term or condition of the Offer in any manner that is adverse to the holders of the Company Shares.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant The obligation of Merger Sub to Article X accept for payment and that none to pay for any shares of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing Company Common Stock tendered (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but obligation of Parent to cause Merger Sub to accept for payment and to pay for any shares of Company Common Stock tendered) in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer withdrawn shall be subject only to:
: (i) the condition (the “Minimum Condition”) that, prior to at the then scheduled expiration of the OfferOffer (as it may be extended from time to time pursuant to Section 2.1(d) hereof), there be validly tendered and not withdrawn in accordance with the terms of the Offer and not withdrawn a number of shares of Company Shares Common Stock that, together with the shares of Company Shares Common Stock then owned by Parent and Acquisition Merger Sub (if any), ) represents at least a majority more than sixty-six and two-thirds percent (66- 2/3%) of the sum of (x) the number of shares of Company Common Stock then issued and outstanding plus (y) all then outstanding shares of Company Shares on a fully diluted basis, assuming Common Stock that the issuance of all Company Shares that may be issued upon required to issue on or prior to the vesting, Closing as a result of the conversion or exercise of all outstanding optionsCompany Options, Company Stock Units and other derivative securities, including warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof options (other than the Top-Up Option), convertible or exchangeable securities or other rights to acquire Company Common Stock (the “Minimum Condition”); and
and (ii) the other conditions set forth in Annex A.A hereto. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment any shares of Company Common Stock pursuant to the Offer shall be subject only to the Minimum Condition and those conditions to the Offer set forth in Annex A hereto. The conditions to the Offer set forth in Annex A hereto are for the sole benefit of Parent and Merger Sub and may be waived by Parent and Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion, other than the Minimum Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company, in each case subject to the terms and conditions of this Agreement and the applicable rules and regulations of the SEC. Parent and Merger Sub expressly reserve the right, subject to Sections 2.1(d) and 2.1(g), to increase the Offer Price or to waive or make any other changes in the terms and conditions to the Offer; provided, however, that unless otherwise provided in this Agreement or previously approved by the Company in writing, neither Parent nor Merger Sub shall (A) decrease the Offer Price, (B) change the form of consideration to be paid in the Offer, (C) reduce the number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose conditions to the Offer in addition to the conditions to the Offer set forth in Annex A hereto, (E) extend the Offer other than in a manner pursuant to, and in accordance with, Section 2.1(d), (F) amend or waive the Minimum Condition or (G) amend any of the terms and conditions of the Offer in any manner adverse to the Company Shareholders.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares (including Shares issued pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1Company Restricted Stock Awards) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) tendered pursuant to the Offer to purchase any and all of the Company Shares at a price per Company Share, are subject to the terms and conditions of Section 2.1(c)this Agreement, equal to including the Offer Price, provided that Parent prior satisfaction of the Minimum Condition and Acquisition Sub shall not be required to commence, the satisfaction or cause to be commencedwaiver of the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the terms and conditions hereof and thereofOffer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or reasonably could adversely affect, any holder of Shares, (F) change or waive the Minimum Condition, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement, or (H) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Samples: Merger Agreement (Sequenom Inc)
Terms and Conditions of the Offer. Provided that Subject to the terms and conditions of this Agreement shall not have been terminated pursuant to Article X and that none Agreement, including the prior satisfaction of the events or circumstances conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the “Offer Conditions”), as promptly soon as practicable after the date hereof Expiration Date (but in no event more later than ten Business Days thereafter9:00 am Eastern Time, on the first business day after the Expiration Date), Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence accept for payment and promptly thereafter (within but no later than the meaning of Rule 14d-2 promulgated under first business day after the Exchange ActExpiration Date) the Offer to purchase any pay for all Shares validly tendered and all of the Company Shares at a price per Company Share, subject not properly withdrawn pursuant to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Offer. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains terms not inconsistent with those set forth in this Agreement. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and Offer not withdrawn in accordance inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer a Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Company Shares thatsought to be purchased in the Offer, together with (D) impose conditions to the Company Shares then owned by Parent and Acquisition Sub Offer in addition to the Offer Conditions, (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion E) amend or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration modify any of the Offer Conditions in a manner that adversely affects holders of Shares generally, (F) change the Minimum Condition, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement or (H) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer may not be terminated prior to the Expiration Date (or any rescheduled Expiration Date) of the Offer without the prior written consent of the Company, unless this Agreement is terminated in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Samples: Merger Agreement (Volcano Corp)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, are subject to the terms and conditions of Section 2.1(c)this Agreement, equal to including the Offer Price, provided that Parent prior satisfaction of the Minimum Condition and Acquisition Sub shall not be required to commence, the satisfaction or cause to be commencedwaiver of the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser and Parent expressly reserve the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in this Agreement and the Offer, (C) decrease the maximum number of Shares sought to be purchased in Annex A. Each the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Shares in its capacity as such or that would, individually or in the aggregate, reasonably be expected to prevent or delay the consummation of the Offer or prevent, delay or impair the ability of Parent and Acquisition Sub shall use its reasonable best efforts or Purchaser to consummate the Offer, subject to the terms and conditions hereof and thereofMerger or the other Transactions, (F) change or waive the Minimum Condition, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement or (H) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Samples: Merger Agreement (Senomyx Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant The obligation of Merger Sub to Article X accept for payment and that none to pay for any shares of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing Company Common Stock tendered (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but obligation of Parent to cause Merger Sub to accept for payment and to pay for any shares of Company Common Stock tendered) in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer withdrawn shall be subject only to:
: (i) the condition (the “Minimum Condition”) that, prior to the then scheduled expiration date of the OfferOffer (as it may be extended from time to time pursuant to Section 2.1(d) hereof), there be validly tendered and not withdrawn in accordance with the terms of the Offer and not withdrawn a number of shares of Company Shares Common Stock that, together with the shares of Company Shares Common Stock then owned by Parent and Acquisition any of its Subsidiaries, including Merger Sub (if any), represents at least a majority is equal to or greater than 48,282,192 shares of all then outstanding Company Shares on a fully diluted basisCommon Stock, assuming the issuance plus fifty percent (50%) of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration any Equity Interests of the Offer in accordance with the terms and conditions thereof Company granted or issued after August 31, 2010 (other than pursuant to the Top-Up Optionexercise of Company Options, Company Restricted Stock Units or the Company Warrant, in each case existing on August 31, 2010 on the terms in effect on such date) (the “Minimum Condition”); and
and (ii) the other conditions set forth in Annex A.A hereto. The conditions to the Offer set forth in Annex A hereto are for the sole benefit of Parent and Merger Sub and may be waived by Parent and Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion, other than the Minimum Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company, in each case on the terms and subject to the conditions of this Agreement and the applicable rules and regulations of the SEC. Parent and Merger Sub expressly reserve the right to increase the Offer Price or to waive or make any other changes to the terms and conditions of the Offer; provided, however, that unless previously approved by the Company in writing, neither Parent nor Merger Sub may take any action or make any change to the terms or conditions of the Offer that (A) decreases the Offer Price, (B) changes the form of consideration to be paid in the Offer, (C) reduces the number of shares of Company Common Stock sought to be purchased in the Offer, (D) imposes conditions to the Offer in addition to the conditions to the Offer set forth in Annex A hereto, (E) extends the Offer other than in a manner pursuant to, and in accordance with, Section 2.1(d) or (F) amends or waives the Minimum Condition or amends any of the terms of the Offer in any manner adverse to the Company Shareholders, except for any amendment required to be made to be in compliance with any rule, regulation, interpretation or position of the SEC or its Staff which amendment is not adverse in any material respect to the Company Shareholders.
Appears in 1 contract
Samples: Merger Agreement (Zymogenetics Inc)
Terms and Conditions of the Offer. Provided that Subject only to the terms and conditions of this Agreement shall not have been terminated pursuant to Article X and that none Agreement, including the prior satisfaction of the events Minimum Condition and the satisfaction or circumstances waiver of the other conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the “Offer Conditions”), as promptly soon as practicable after the date hereof (but in no event more than ten Business Days thereafter)Expiration Date, Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) consummate the Offer to purchase any in accordance with its terms, and promptly irrevocably accept for payment and promptly thereafter pay for all of the Company Shares at a price per Company Share, subject validly tendered and not properly withdrawn pursuant to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Offer. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and the Offer Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition and (iii) make any other changes in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The of the Offer; provided, however, that without the prior written consent of the Company, Purchaser shall not (A) decrease the Closing Amount, Offer shall Price or the number of CVRs to be subject only to:
paid per Share, (iB) change the condition form of consideration payable in the Offer, (C) decrease the “Minimum Condition”maximum number of Shares sought to be purchased in the Offer, (D) that, prior impose conditions or requirements to the expiration Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or would reasonably be expected to adversely affect, the holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer, there be validly tendered and (F) change or waive the Minimum Condition or the Regulatory Condition, (G) accelerate, extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement, (H) amend any term of any CVR or the CVR Agreement in any manner that is adverse to any holder of Shares or (I) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. Purchaser may not withdrawn in accordance with terminate or withdraw the terms Offer prior to any scheduled Expiration Date (or any rescheduled Expiration Date) without the prior written consent of the Offer a number of Company Shares thatCompany, together with except in the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares event that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled this Agreement is terminated pursuant to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Purchaser to accept for payment, and pay for, any Shares tendered pursuant to Article X and that none of the events or circumstances Offer are subject to the conditions set forth in clauses Section 15—“Conditions of the Offer.” The Offer Conditions are for the sole benefit of Purchaser and Parent. Subject to the terms and conditions of the Merger Agreement and applicable laws, rules and regulations, any Offer Condition (C)(1other than the Minimum Condition) may be waived by Purchaser and Parent in whole or in part at any time and from time to time in their sole discretion, except that, without the prior written consent of Carbon Black, Purchaser and Parent may not (C)(4i) reduce the maximum number of Shares sought to be purchased in the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer that are in addition to the Offer Conditions, or modify or amend any existing Offer Condition in a manner adverse to the holders of the Shares, (v) except as otherwise required or permitted by section 1.1(d) of Annex A shall have occurred and be existing the Merger Agreement, extend or otherwise change the Expiration Time, (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub tovi) commence (provide for any “subsequent offering period” within the meaning of Rule 14d-2 promulgated 14d-11 under the Exchange Act, (vii) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to increase the Offer Price, provided except following an Adverse Recommendation Change (as defined below) or Carbon Black’s delivery to us of a notice of a Superior Proposal (as defined below) or in the event that we are permitted to extend the Offer pursuant to section 1.1(d)(i)(2) of the Merger Agreement, or (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of the Shares. Extensions of the Offer. Purchaser will extend the Offer on one or more occasions (i) if on the then scheduled Expiration Time, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied or waived by Parent and Acquisition Sub or Purchaser, in consecutive increments of up to 15 Business Days each, as determined by Purchaser in its sole discretion, in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Purchaser to waive any Offer Condition, other than the Minimum Condition); provided, however, that (A) Purchaser shall not be required to commence, or cause to be commenced, extend the Offer prior to a date later than the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares Outside Date and (the “Offer to Purchase”B) that is disseminated to if all of the Company Stockholders Offer Conditions (other than the Minimum Condition and contains other than those conditions that by their nature are to be satisfied at the Expiration Time, but subject to such conditions being able to be satisfied) have been satisfied or waived, Purchaser shall not be required to (but in its sole discretion may) extend the Offer to a date later than the earlier of (x) the Outside Date and (y) the date that is 20 Business Days after the date that all of the Offer Conditions (other than the Minimum Condition and other than those conditions that by their nature are to be satisfied at the Expiration Time, but subject to such conditions being able to be satisfied) have been satisfied or waived, and (ii) if required by any rule, regulation, interpretation or position of Table of Contents the SEC, the staff thereof or the Nasdaq or the NYSE, except that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Recommendation Carbon Black has represented in the Merger Agreement that the Carbon Black Board, at a meeting duly called and held, has unanimously (i) determined that the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of Carbon Black and its stockholders, (ii) approved the Merger Agreement and the transactions contemplated thereby and declared it advisable that Carbon Black enter into the Merger Agreement and consummate the transactions contemplated thereby (iii) resolved that the Merger Agreement and the Merger be governed by and effected under Section 251(h) of the DGCL; (iv) recommended that the stockholders of Carbon Black tender their Shares in the Offer; and (v) to the extent necessary, having the effect of causing the Merger, the Merger Agreement, the Support Agreements and the transactions contemplated by the Merger Agreement and the Support Agreements not to be subject to any state takeover law or similar law, rule or regulation that might otherwise apply to the Merger or any such transaction, in each case, on the terms and subject to the conditions of the Merger Agreement (such recommendation, the “Carbon Black Board Recommendation”). The Merger Agreement provides that, following completion of the Offer, if applicable, and subject to the conditions set forth in this the Merger Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms DGCL, at the Effective Time: • Purchaser will be merged with and into Carbon Black; • the separate corporate existence of Purchaser will cease and Carbon Black will continue its corporate existence under the Offer DGCL as the Surviving Corporation in the Merger; and • the Surviving Corporation will become a number wholly owned subsidiary of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Parent.
Appears in 1 contract
Samples: Offer to Purchase (Vmware, Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none The obligation of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any , and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition to cause Merger Sub shall use its reasonable best efforts to consummate to, upon expiration of the Offer, subject accept for payment and to pay for (after giving effect to any required withholding or stock transfer Tax) any shares of Company Common Stock tendered in the terms Offer and conditions hereof and thereof. The Offer not withdrawn shall be subject only to:
: (i) the condition (the “Minimum Condition”) that, prior to the then scheduled expiration date of the OfferOffer (as it may be extended from time to time pursuant to Section 2.1(d), the “Expiration Date”), there be validly tendered and not withdrawn in accordance with the terms of the Offer and not withdrawn a number of shares of Company Shares Common Stock that, together with when added to the number of shares of Company Shares then Common Stock owned by Parent and Acquisition Merger Sub at the time of the exercise of the Top-Up Option constitutes one share more than fifty percent (if any), represents at least a majority 50%) of all then the sum of (x) the number of shares of Company Common Stock outstanding Company Shares on a fully diluted basis, assuming the immediately prior to issuance of all shares of Company Shares that Common Stock subject to the Top-Up Option plus (y) all shares of Company Common Stock which the Company may be issued upon required to issue on or prior to the vestingClosing as a result of the vesting (including vesting solely as a result of the consummation of the Offer), conversion or exercise of all outstanding optionsCompany Stock Options, warrants, if and only if such securities would be convertible prior to the Closing because their respective conversion or exchangeable securities and similar rights that exercise prices are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of greater than the Offer in accordance with Price and the other terms and conditions thereof are otherwise satisfied (other than the Top-Up Option“Minimum Condition”); and
and (ii) the other conditions set forth in Annex A.A hereto. The Minimum Condition and the conditions to the Offer set forth in Annex A hereto (the “Offer Conditions”) are for the sole benefit of Parent and Merger Sub and each of the Offer Conditions other than the Minimum Condition may be waived by Parent and Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion, in each case subject to the terms and conditions of this Agreement and the applicable rules and regulations of the SEC. Parent and Merger Sub expressly reserve the right to increase the Offer Price or to waive or make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided in this Agreement or previously approved by the Company in writing, neither Parent nor Merger Sub may make any change to the terms or conditions of the Offer that (i) decreases the Offer Price or changes the form of consideration to be paid in the Offer, (ii) amends or waives the Minimum Condition, (iii) except as provided in Section 2.1(d), makes any change in the Offer that would require an extension or delay of the then-current Expiration Date, (iv) reduces the number or percentage of shares of Company Common Stock sought to be purchased in the Offer, (v) imposes conditions to the Offer in addition to the conditions to the Offer set forth in Annex A hereto, (v) modifies or amends the Offer Conditions (other than to waive such Offer Conditions, except for the Minimum Condition) in a manner materially adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock or (vi) modifies or amends any other term of this Offer in any manner materially adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
Appears in 1 contract
Samples: Merger Agreement (Comverge, Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered (and not have been terminated properly withdrawn) pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, are subject to the terms and conditions of Section 2.1(c)this Agreement, equal to including the Offer Price, provided that Parent prior satisfaction of the Minimum Condition and Acquisition Sub shall not be required to commence, the prior satisfaction or cause to be commencedwaiver of the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, including the Minimum Condition and the other Offer Conditions. Each of Parent and Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive or modify any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth of the Offer; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, neither Parent nor Purchaser shall (A) decrease the Offer Price, (B) change the form of consideration payable in this Agreement and the Offer, (C) decrease the maximum number of Shares sought to be purchased in Annex A. Each the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or could reasonably be expected to adversely affect, any holder of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or materially impair the ability of Parent and Acquisition Sub shall use its reasonable best efforts or Purchaser to consummate the Offer, subject to the terms and conditions hereof and thereofMerger or the other Transactions, (F) change or waive the Minimum Condition, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement or (H) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant The obligation of Merger Sub to Article X accept for payment and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing to pay for any Company Shares tendered (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition obligation of Parent to cause Merger Sub shall (to accept for payment and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase pay for any and all of the Company Shares at a price per Company Share, subject to tendered) in the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
to (i) the condition (the “Minimum Condition”) that, prior to the expiration then scheduled Expiration Date of the OfferOffer (as it may be extended from time to time pursuant to Section 1.1(d)), there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Common Shares that, together with the Company Common Shares then owned by Parent and Acquisition Merger Sub (if any), and without giving effect to any Common Shares held in treasury, represents at least a majority more than 50% of all then outstanding the Adjusted Outstanding Share Number as of immediately prior to the Merger Sub’s acceptance for payment of the Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled pursuant to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with (the terms “Minimum Condition”), and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth on Exhibit B. The conditions to the Offer set forth on Exhibit B are for the sole benefit of Parent and Merger Sub and may be waived by Parent or Merger Sub, in Annex A.whole or in part, at any time and from time to time, in their sole discretion; provided that the Minimum Condition may be amended or waived by Parent or Merger Sub only with the prior written consent of the Company. Parent and Merger Sub expressly reserve the right to increase the Common Offer Price or the Series D Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless previously approved by the Company in writing, neither Parent nor Merger Sub may make any change to the terms or conditions of the Offer that (A) decreases the Common Offer Price or the Series D Offer Price (other than any adjustment made pursuant to Section 1.1(c)), (B) changes the form of consideration to be paid in the Offer, (C) reduces the number of Common Shares or Series D Shares sought to be purchased in the Offer, (D) imposes conditions to the Offer in addition to those set forth on Exhibit B, (E) amends the conditions to the Offer set forth on Exhibit B so as to broaden the scope of such conditions to the Offer, or (F) reduces the time period during which the Offer shall remain open or extends the Offer in any manner other than pursuant to and in accordance with the terms of Section 1.1(d), or otherwise amends any other term or condition of the Offer in a manner adverse to holders of Company Shares.
Appears in 1 contract
Terms and Conditions of the Offer. Provided Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been validly terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)VIII, as promptly as practicable after the date hereof (but in no event more than ten fifteen (15) Business Days thereafter), Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer Offer. In the Offer, each Share accepted by Purchaser in accordance with the terms and subject to purchase any and all the conditions of the Company Shares at Offer shall be exchanged for (x) the Per Share Price and (y) one contingent value right per Share (a price per Company Share“CVR”) representing the right to receive, subject to the terms and conditions of the CVR Agreement, the consideration set forth in the CVR Agreement (the CVRs together with the aggregate Per Share Price paid in accordance with this Section 2.1(c1.1(a), equal the “Offer Consideration”), subject to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. other provisions of this Article I. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all holders of the Company Stockholders Shares pursuant to the Exchange Act and contains contains, to the extent required by the Exchange Act, the terms and conditions set forth in this Agreement and in Annex A. (including Schedule I). Each of Parent and Acquisition Sub Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof(including Schedule I). The obligation of Purchaser to accept for purchase (and the obligation of Parent to cause Purchaser to accept for purchase) Shares validly tendered (and not validly withdrawn) pursuant to the Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be have been validly tendered and not validly withdrawn in accordance with the terms of the Offer a number of Company Shares that, upon the consummation of the Offer, together with the Company Shares then owned directly or indirectly by Parent, Purchaser or any direct or indirect Subsidiary of Parent and Acquisition Sub (if anyexcluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures), represents would represent at least a majority of all then the aggregate number of shares of the Company Capital Stock outstanding Company Shares on a fully diluted basis, assuming immediately after the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration consummation of the Offer in accordance with (the terms and conditions thereof (other than the Top-Up Option“Minimum Condition”); and
(ii) the other conditions set forth in Annex A.Schedule I.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all satisfaction of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedMinimum Condition, the Termination Condition and the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clause (e) or (g) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts to consummate capacity as such, (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Sections 1.1(c) or 1.1(d) or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to (and of Parent to cause Purchaser to) accept for payment, and (prior to the Offer Acceptance Time) pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X and that none the Offer shall be subject to the satisfaction or waiver (to the extent permitted under applicable Legal Requirements) of the events or circumstances conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the “Offer Conditions”), as promptly as practicable after the date hereof (but in and no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9other conditions. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all (i) increase the amount of cash constituting the Company Stockholders Offer Price, (ii) waive any Offer Condition (to the extent permitted under applicable Legal Requirements) and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer (provided that nothing herein shall limit the ability of Parent and Purchaser to increase the cash consideration payable in the Offer), (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clause (e) or (g) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts to consummate capacity as such, (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Sections 1.01(c) or 1.01(d), or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Article 8.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Common Stock tendered pursuant to Article X the Offer are subject only to the terms and that none conditions of this Agreement, including the prior satisfaction of the events or circumstances Minimum Condition, the Termination Condition and the other conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedcollectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Merger Sub expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and Offer not withdrawn in accordance inconsistent with the terms of this Agreement; provided that notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Merger Sub shall not (I) decrease the Offer a Price, (II) change the form of consideration payable in the Offer, (III) decrease the maximum number of Company Shares thatshares of Common Stock sought to be purchased in the Offer, together with (IV) impose conditions to the Company Shares then owned by Parent Offer in addition to, or that expand upon, the Offer Conditions, (V) amend, change or waive the Minimum Condition, Termination Condition or conditions “(d)” and Acquisition Sub “(if anyf)” set forth in Annex I, (VI) except as provided in Sections 2.1(c) or 2.1(d), represents at least a majority terminate the Offer or accelerate, extend or otherwise change the Expiration Date, (VII) provide any “subsequent offering period” (or any extension thereof) within the meaning of all then outstanding Company Shares on a fully diluted basis, assuming Rule 14d-11 promulgated under the issuance Exchange Act or (VIII) otherwise modify or amend any of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration other terms of the Offer in accordance with a manner that materially and adversely affects, or reasonably could be expected to materially and adversely affect, any holder of shares of Common Stock or the terms likelihood of consummation of the Offer and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Merger on a timely basis.
Appears in 1 contract
Samples: Merger Agreement (CardConnect Corp.)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant The obligation of Merger Sub to Article X accept for payment and that none to pay for any shares of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing Company Common Stock tendered (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but obligation of Parent to cause Merger Sub to accept for payment and to pay for any shares of Company Common Stock tendered) in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer withdrawn shall be subject only to:
: (i) the condition (the “Minimum Condition”) that, prior to the then scheduled expiration date of the OfferOffer (as it may be extended from time to time pursuant to Section 2.1(d) hereof), there be validly tendered and not withdrawn in accordance with the terms of the Offer and not withdrawn a number of shares of Company Shares Common Stock that, together with the shares of Company Shares Common Stock then owned by Parent and Acquisition Merger Sub (if any), ) represents at least a majority of the sum of (x) the number of shares of Company Common Stock then issued and outstanding plus (y) all then outstanding shares of Company Shares on a fully diluted basis, assuming Common Stock which the issuance of all Company Shares that may be issued required to issue as of such date upon the vestingvesting (including vesting solely as a result of the consummation of the Offer or the Merger), conversion or exercise of all outstanding optionsCompany Options, Company Restricted Stock Units and other derivative securities, including warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof options (other than the Top-Up Option), convertible or exchangeable securities or other rights to acquire Company Common Stock, regardless of the conversion or exercise price or other terms and conditions thereof (the “Minimum Condition”); and
and (ii) the other conditions set forth in Annex A.A hereto. The conditions to the Offer set forth in Annex A hereto are for the sole benefit of Parent and Merger Sub and may be waived by Parent and Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion, other than the Minimum Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company, in each case on the terms and subject to the conditions of this Agreement and the applicable rules and regulations of the SEC. Parent and Merger Sub expressly reserve the right to increase the Offer Price or to waive or make any other changes to the terms and conditions of the Offer; provided, however, that unless otherwise provided in this Agreement or previously approved by the Company in writing, neither Parent nor Merger Sub may make any change to the terms or conditions of the Offer that (A) decreases the Offer Price, (B) changes the form of consideration to be paid in the Offer, (C) reduces the number of shares of Company Common Stock sought to be purchased in the Offer, (D) modifies the Offer or the conditions of the Offer in a manner adverse to the stockholders of the Company or imposes conditions to the Offer in addition to the conditions to the Offer set forth in Annex A hereto, (E) except as provided in Section 2.1(d), extends the expiration time of the Offer beyond the initial expiration time of the Offer, or (F) amends or waives the Minimum Condition.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Merger Sub to (and of Parent to cause Merger Sub to) accept for purchase, and pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X and that none the Offer shall be subject to the prior satisfaction or waiver (to the extent permitted under applicable Laws) of the events or circumstances conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the “Offer Conditions”), as promptly as practicable after the date hereof (but in and no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9other conditions. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition (as defined in Annex I), the Termination Condition (as defined in Annex I) and the other Offer Conditions. Merger Sub expressly reserves the right to all (i) increase the amount of cash constituting the Company Stockholders Offer Price, (ii) waive any Offer Condition (to the extent permitted under applicable Laws) and contains (iii) make any other changes in the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and Offer not withdrawn in accordance inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Merger Sub shall not (A) decrease the Offer a Price (except to the extent required by Section 3.3(e)), (B) change the form of consideration payable in the Offer (provided that nothing herein shall limit the ability of Parent and Merger Sub to increase the cash consideration payable in the Offer), (C) decrease the maximum number of Company Shares thatsought to be purchased in the Offer, together with (D) impose conditions or requirements to the Company Shares then owned by Parent and Acquisition Sub Offer in addition to the Offer Conditions, (if any)E) amend, represents at least a majority modify or waive the Minimum Condition, Termination Condition or the conditions set forth in clause (e) of all then outstanding Company Shares on a fully diluted basisAnnex I, assuming (F) otherwise amend or modify any of the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration other terms of the Offer in accordance with a manner that adversely affects, or would reasonably be expected to adversely affect any holder of Shares in its capacity as such, (G) withdraw or terminate the terms and conditions thereof Offer or accelerate, extend or otherwise change the Expiration Date, in each case, except as provided in Sections 1.1(c) or 1.1(d) or (other than H) provide any “subsequent offering period” (or any extension thereof) within the Top-Up Option); and
(ii) meaning of Rule 14d-11 promulgated under the other conditions set forth in Annex A.Exchange Act.
Appears in 1 contract
Terms and Conditions of the Offer. Provided Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated pursuant to Article X IX and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A Company shall have occurred complied with its obligations under this Section 1.1 and be existing (and shall not have been waived by Parent)Section 1.2, as promptly as practicable after the date hereof (but in no event more than ten Business Days (10) business days thereafter), Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any Offer. In the Offer, each Company Share accepted by Purchaser in accordance with the terms and all of the Company Shares at a price per Company Share, subject to the terms conditions of Section 2.1(cthe Offer shall be exchanged for the right to receive, at the election of the holder: (i) $19.65 in cash (the “Cash Consideration”), equal to (ii) 1.9037 shares of Parent Common Stock (the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence“Stock Consideration”), or cause to be commenced(iii) $9.82 in cash and 0.9519 shares of Parent Common Stock (the “Mixed Consideration”) (each of the Cash Consideration, Stock Consideration and Mixed Consideration, as applicable, the “Offer prior Consideration”), in each case subject to proration as set forth in Section 1.1(c) and the date on which the Company is prepared to file the Schedule 14D-9. other provisions of this Article I. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the holders of Company Stockholders Shares as and contains to the extent required by the Exchange Act. The Offer to Purchase will contain the terms and conditions set forth in this Agreement and in Annex A. B. Each of Parent and Acquisition Sub Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be being validly tendered (excluding Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by the depositary for the Offer) and not validly withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub Purchaser (if any), represents at least a majority of all then then-outstanding Company Shares on a fully diluted basis, assuming (the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option“Minimum Condition”); and
(ii) the other conditions set forth in Annex A.B.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant The obligation of Merger Sub to Article X accept for payment and that none to pay for any shares of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing Company Common Stock tendered (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but obligation of Parent to cause Merger Sub to accept for payment and to pay for any shares of Company Common Stock tendered) in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer withdrawn shall be subject only to:
: (i) the condition (the “Minimum Condition”) that, prior to the then scheduled expiration date of the OfferOffer (as it may be extended from time to time pursuant to Section 2.1(d) hereof), there be validly tendered and not withdrawn in accordance with the terms of the Offer and not withdrawn a number of shares of Company Shares Common Stock that, together with the shares of Company Shares Common Stock then owned by Parent and Acquisition Merger Sub (if any), ) represents at least a majority 66 2/3 percent of the sum of (x) the number of shares of Company Common Stock then issued and outstanding plus (y) all then outstanding shares of Company Shares on a fully diluted basis, assuming Common Stock which the issuance of all Company Shares that may be issued required to issue as of such date upon the vestingvesting (including vesting solely as a result of the consummation of the Offer or the Merger), conversion or exercise of all outstanding optionsCompany Options, Company Restricted Stock Units and other derivative securities, including warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof options (other than the Top-Up Option), convertible or exchangeable securities or other rights to acquire Company Common Stock, regardless of the conversion or exercise price or other terms and conditions thereof (the “Minimum Condition”); and
and (ii) the other conditions set forth in Annex A.A hereto. The conditions to the Offer set forth in Annex A hereto are for the sole benefit of Parent and Merger Sub and may be waived (but not otherwise altered without the prior written consent of the Company) by Parent and Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion, other than the Minimum Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company, in each case on the terms and subject to the conditions of this Agreement and the applicable rules and regulations of the SEC. Parent and Merger Sub expressly reserve the right to increase the Offer Price or to waive or make any other changes to the terms and conditions of the Offer; provided, however, that unless otherwise provided in this Agreement or previously approved by the Company in writing, neither Parent nor Merger Sub may make any change to the terms or conditions of the Offer that (A) decreases the Offer Price, (B) changes the form of consideration to be paid in the Offer, (C) reduces the number of shares of Company Common Stock sought to be purchased in the Offer, (D) imposes conditions to the Offer in addition to the conditions to the Offer set forth in Annex A hereto, or (E) amends or waives the Minimum Condition.
Appears in 1 contract
Samples: Merger Agreement (Sutron Corp)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to (and of Parent to cause Purchaser to) accept for payment, and pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X and that none the Offer shall be subject to the satisfaction or waiver (to the extent permitted under applicable Legal Requirements) of the events or circumstances conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the “Offer Conditions”), as promptly as practicable after the date hereof (but in and no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9other conditions. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all (i) increase the amount of cash constituting the Company Stockholders Cash Amount and/or the Milestone Payment, (ii) add additional milestone payments and contains additional milestones solely with respect to additional milestone payments to the CVRs and the CVR Agreement, (iii) waive any Offer Condition (to the extent permitted under applicable Legal Requirements) and (iv) make any other changes in the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and Offer not withdrawn in accordance inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Cash Amount or the amount of the Milestone Payment, (B) change the form of consideration payable in the Offer a (provided that nothing herein shall limit the ability of Parent and Purchaser to increase the Cash Amount or the Milestone Payment or add additional milestone payments or additional milestones solely with respect to additional milestone payments to the CVRs and the CVR Agreement), (C) decrease the maximum number of Company Shares thatsought to be purchased in the Offer, together with (D) impose conditions or requirements to the Company Shares then owned by Parent and Acquisition Sub Offer in addition to the Offer Conditions, (if any)E) amend, represents at least a majority modify or waive the Minimum Condition, Termination Condition or the conditions set forth in clause (e) or (g) of all then outstanding Company Shares on a fully diluted basisAnnex I, assuming (F) otherwise amend or modify any of the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration other terms of the Offer in a manner that adversely affects, or would reasonably be expected to adversely affect any holder of Shares in its capacity as such, (G) terminate the Offer or accelerate, extend or otherwise change the Expiration Date, in each case, except as provided in Sections 1.1(c) or 1.1(d), (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act or (I) amend or modify the terms of the CVR or the CVR Agreement other than to increase the amount of the Milestone Payment or to add additional milestone payments or additional milestones solely with respect to additional milestone payments. The Offer may not be withdrawn prior to the Expiration Date (or any rescheduled Expiration Date) of the Offer without the prior written consent of the Company, unless this Agreement is terminated in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been validly terminated pursuant to Article X and that none of the events 8, on or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after before the date hereof (but in no event more than ten that is 10 Business Days thereafter)from the date hereof, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the outstanding Company Shares at a price per Company Share, subject to the terms of Section 2.1(c1.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9without interest. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders as and to the extent required by United States federal securities laws and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Merger Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, irrevocably accept for payment and pay for any Company Shares validly tendered (and not validly withdrawn) pursuant to the Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, as of immediately prior to the expiration of the OfferExpiration Time, there be validly tendered and not withdrawn in accordance with the terms of the Offer, and “received” by the “depository” for the Offer (as such terms are defined in Section 251(h) of the DGCL), a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (owned, if any, by Parent, Merger Sub and any of their respective Affiliates (excluding shares tendered pursuant to guaranteed delivery procedures that have not yet been “received”, as defined by Section 251(h) of the DGCL), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration as of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option)Expiration Time; and
(ii) the other conditions set forth in Annex A.A (as they may be amended in accordance with this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Trecora Resources)
Terms and Conditions of the Offer. Provided that Subject to the terms and conditions of this Agreement shall not have been terminated pursuant to Article X and that none Agreement, including the prior satisfaction of the events Minimum Condition and the satisfaction or circumstances waiver of the other conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the “Offer Conditions”), as promptly soon as practicable after the date hereof (but in no event more than ten Business Days thereafter)Expiration Date, Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) consummate the Offer to purchase any in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all of the Company Shares at a price per Company Share, subject validly tendered and not properly withdrawn pursuant to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Offer. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and the Offer Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition and (iii) make any other changes in Annex A. Each the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions or any other terms or conditions of this Agreement in a manner that adversely affects, or could reasonably be expected to adversely affect, any holder of Shares or that could, individually or in the aggregate, reasonably be expected to prevent or delay the consummation of the Offer or prevent, delay or impair the ability of Parent and Acquisition Sub shall use its reasonable best efforts or Purchaser to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
Merger or the other Transactions, (iF) change or waive the condition Minimum Condition or the Regulatory Condition, (the “Minimum Condition”G) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms of terminate the Offer or accelerate, extend or otherwise change the Expiration Date in a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (manner other than as required or permitted by this Agreement or (H) provide any “subsequent offering period” within the Top-Up Option); and
(ii) meaning of Rule 14d-11 promulgated under the other conditions set forth in Annex A.Exchange Act.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Turning Point Therapeutics, Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligation of Purchaser to accept for payment and to pay for any Shares tendered in the Offer and not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing withdrawn (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each obligation of Parent to cause Purchaser to accept for payment and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer pay for any such Shares) shall be subject only toto the satisfaction or waiver of:
(i) the condition (the “Minimum Condition”) that, prior to the then scheduled expiration time of the OfferOffer (the initial “Expiration Date”, and any expiration established pursuant to an extension of the Offer in accordance with Section 1.1(c), also an “Expiration Date”) there be validly tendered and not withdrawn in accordance with the terms of the Offer (without regard to Shares tendered pursuant to guaranteed delivery procedures and not actually delivered prior to the Expiration Date) and not withdrawn a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub each of the other Bayer Entities (if anyincluding Purchaser), represents at least a majority of the sum of (x) the number of Shares then issued and outstanding plus (y) all Shares which the Company may be required to issue upon the vesting (including vesting solely as a result of the consummation of the Offer), conversion, settlement or exercise of all then outstanding warrants, options, benefit plans, obligations or securities convertible or exchangeable into Shares, or other rights to acquire or be issued Shares (including all then outstanding Company Shares on a fully diluted basisOptions, Company Restricted Stock Units, Company Stock Appreciation Rights and Company Convertible Notes (after giving effect to any Make-Whole Fundamental Change (as defined in the Indenture), assuming the issuance of all Company Shares that may be issued upon effectiveness thereof occurred on the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety Expiration Date)) (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option“Minimum Condition”); and
(ii) the other conditions to acceptance for payment and payment for any Shares tendered in the Offer set forth in Annex A.A hereto. The Minimum Condition and the other conditions to the Offer set forth in Annex A hereto are for the sole benefit of Parent and Purchaser and may be asserted by Parent and Purchaser, regardless of the circumstances giving rise to such condition, in whole or in part, at any time or from time to time, in their sole discretion, and all such conditions (except for the Minimum Condition, which may be waived by Parent and Purchaser only with the prior written consent of the Company) may be waived by Parent and Purchaser, in their sole discretion, in whole or in part at any time or from time to time, in each case subject to the terms and conditions of this Agreement and the applicable rules and regulations of the SEC. Parent and Purchaser expressly reserve the right to increase the Offer Price or to waive or make any other changes to the terms and conditions of the Offer; provided, however, that unless previously approved by the Company in writing, neither Parent nor Purchaser may take any action or make any change to the terms or conditions of the Offer that:
(A) decreases the Offer Price,
(B) changes the form of consideration to be paid in the Offer,
(C) reduces the maximum number of Shares sought to be purchased in the Offer,
(D) imposes conditions to the Offer in addition to the conditions to the Offer set forth in Annex A hereto or amends or modifies any of the conditions set forth in such Annex A in any manner adverse to the holders of Shares,
(E) extends the Expiration Date other than in a manner pursuant to, and in accordance with, Section 1.1(c) or
(F) amends or waives the Minimum Condition or amends any material terms of the Offer other than those specified in clauses (A) through (E) of this proviso in a manner materially adverse to the Company Stockholders as a whole.
Appears in 1 contract
Samples: Merger Agreement (Conceptus Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all satisfaction of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedMinimum Condition, the Termination Condition, and the other conditions set forth in Exhibit B (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clause (e) or (g) of Exhibit B, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts capacity as such, (G) terminate the Offer or accelerate, extend or otherwise change the Expiration Date, in each case, except as provided in Section 1.1(c) or Section 1.1(d), (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act or (I) take any action (or fail to consummate take any action) that would result in the Offer, subject Merger not being permitted to be effected pursuant to Section 251(h) of the terms and conditions hereof and thereofDGCL. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Article VIII.
Appears in 1 contract
Terms and Conditions of the Offer. Provided Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated pursuant to Article X VIII and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A Company shall have occurred timely complied with its obligations under Section 1.2(b)(ii) and be existing Section 1.3, Purchaser shall (and Parent shall not have been waived by Parentcause Purchaser to), as promptly as practicable after the date hereof (but in no event more than and Parent and Purchaser shall use reasonable best efforts to, within ten (10) Business Days thereafterafter the date hereof), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer Offer. In the Offer, each share of Company Common Stock accepted by Purchaser in accordance with the terms and subject to purchase any and all the conditions of the Company Shares at a price per Company ShareOffer shall be exchanged for the right to receive $10.20 in cash, without interest (the “Per Share Price”), subject to the terms other provisions of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. this Article I. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all holders of Company Common Stock pursuant to the Company Stockholders Exchange Act and contains contains, to the extent required by the Exchange Act, the terms and conditions set forth in this Agreement (including Annex A). The obligation of Purchaser to accept for payment (and in Annex A. Each the obligation of Parent to cause Purchaser to accept for payment) shares of Company Common Stock validly tendered (and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject not validly withdrawn) pursuant to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be have been validly tendered and not validly withdrawn in accordance with the terms of the Offer a number of shares of Company Shares Common Stock that, upon the consummation of the Offer, together with the shares of Company Shares Common Stock then owned by Parent and Acquisition Sub Purchaser (if any) (excluding shares of Company Common Stock (A) tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures, or (B) tendered by the Company or any of its wholly-owned Subsidiaries), represents would represent at least a majority of all then then-outstanding shares of Company Shares on a fully diluted basisCommon Stock (excluding, assuming for the issuance avoidance of all the doubt, shares of Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights Common Stock (x) that are thenowned or held by the Company (including shares held in treasury) or any of its wholly-owned Subsidiaries, and (y) that are owned or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration held by Purchaser as a result of any tender into the Offer in accordance with by the terms and conditions thereof Company or any of its wholly-owned Subsidiaries) (other than the Top-Up Option“Minimum Condition”); and
(ii) the other conditions set forth in Annex A.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall If the Offer Termination has not have been terminated occurred, the obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered (and not validly withdrawn) pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all satisfaction of the Company Shares at a price per Company ShareMinimum Condition and the Termination Condition, subject to and the terms satisfaction or waiver of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedother conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser and Parent expressly reserve the right to all (i) increase the amount of the Company Stockholders Cash Consideration or the amount of any Milestone Payment, (ii) waive any Offer Condition other than the Minimum Condition, the Termination Condition or the conditions set forth in clauses (e) and contains (g) (solely in respect of any Antitrust Law) of Annex I and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the amount of the Cash Consideration or the amount of any Milestone Payment or otherwise amend any of the terms or conditions of the CVR Agreement in a manner adverse to any holder of Shares in its capacity as such, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, the Termination Condition or the conditions set forth in this Agreement clauses (e) and (g) (solely in respect of any Antitrust Law) of Annex A. Each I, (F) otherwise amend or modify any of Parent and Acquisition Sub shall use the Offer Conditions in a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Shares in its reasonable best efforts to consummate capacity as such, (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Sections 1.1(c), 1.1(d) or 5.4 (including, for the avoidance of doubt, in connection with an Offer Termination), or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, terminated or withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of Section 8 or the Offer a number of Company Shares that, together is terminated or withdrawn in connection with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the an Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Termination.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Decibel Therapeutics, Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all satisfaction of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedMinimum Condition, the Termination Condition and the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance so long as such changes are consistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, (1) Parent and Purchaser shall not amend, modify or waive the Minimum Condition and (2) without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer a Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Company Shares thatsought to be purchased in the Offer, together with (D) impose conditions or requirements to the Company Shares then owned by Parent and Acquisition Sub Offer in addition to the Offer Conditions, (if any)E) amend, represents at least a majority modify or waive the Termination Condition or the condition set forth in clause (f) of all then outstanding Company Shares on a fully diluted basisAnnex I, assuming (F) otherwise amend or modify any of the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration other terms of the Offer in accordance with the terms and conditions thereof a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Shares (other than Parent and its Affiliates) in its capacity as such, (G) terminate the Top-Up OptionOffer or accelerate, extend or otherwise change the Expiration Date, in each case, except as provided in Section 1.1(c) or 1.1(d) or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer may not be withdrawn prior to the Expiration Date (or any rescheduled Expiration Date); and
(ii) the other conditions set forth , unless this Agreement is terminated in Annex A.accordance with Section 8.
Appears in 1 contract
Samples: Merger Agreement (AlerisLife Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall If the Offer Termination has not have been terminated occurred, the obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered (and not validly withdrawn) pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all satisfaction of the Company Shares at a price per Company ShareMinimum Condition and the Termination Condition, subject to and the terms satisfaction or waiver of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedother conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser and Parent expressly reserve the right to all (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition, the Termination Condition or the conditions set forth in clauses (e) and (g) (solely in respect of the Company Stockholders any Antitrust Law) of Annex I and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, the Termination Condition or the conditions set forth in this Agreement clauses (e) and (g) (solely in respect of any Antitrust Law) of Annex A. Each I, (F) otherwise amend or modify any of Parent and Acquisition Sub shall use the Offer Conditions in a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Shares in its reasonable best efforts to consummate capacity as such, (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Sections 1.1(c), 1.1(d) or 5.4 (including, for the avoidance of doubt, in connection with an Offer Termination), or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, terminated or withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of Section 8 or the Offer a number of Company Shares that, together is terminated or withdrawn in connection with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the an Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Termination.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)IX, as promptly as practicable after the date hereof (but in no event more than ten Business Days thirteen (13) business days thereafter), Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Shares. In the Offer, each Company Share, Share accepted by Purchaser in accordance with the terms and subject to the terms conditions of Section 2.1(cthe Offer and in compliance with applicable Law shall be exchanged for the right to receive, at the election of the holder: (i) $261.25 in cash (the “Cash Consideration”), (ii) a number of shares of Parent Common Stock equal to (x) $261.25 divided by (y) the Offer Price, provided that Parent and Acquisition Sub shall not be required to commenceTrading Price (the “Stock Consideration”), or cause (iii) $152.25 in cash and a number of shares of Parent Common Stock equal to be commenced(x) $109.00 divided by (y) the Parent Trading Price (the “Mixed Consideration”), in each case subject to proration as set forth in Section 1.1(c) and the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. other provisions of this Article I. The Offer shall be made by means Table of Contents of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the holders of Company Stockholders Shares and contains the terms and conditions set forth in this Agreement and in Annex A. B. Each of Parent and Acquisition Sub Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub Purchaser (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all (excluding Company Shares tendered pursuant to guaranteed delivery procedures that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90have not yet been “received,” as such term is defined in Section 251(h) days following the then scheduled expiration of the DGCL, by the depositary for the Offer in accordance with the terms and conditions thereof (other than the Top-Up Optionpursuant to such procedures); and
(ii) the other conditions set forth in Annex A.B.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Pharmacyclics Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to (and of Parent to cause Purchaser to) accept for payment, and pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X and that none the Offer shall be subject to the satisfaction or waiver (to the extent permitted under applicable Legal Requirements) of the events or circumstances conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the “Offer Conditions”), as promptly as practicable after the date hereof (but in and no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9other conditions. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all (i) increase the amount of cash constituting the Company Stockholders Offer Price, (ii) waive any Offer Condition (to the extent permitted under applicable Legal Requirements) and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer (provided that nothing herein shall limit the ability of Parent and Purchaser to increase the cash consideration payable in the Offer), (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clause (e) or (g) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects, or would reasonably be expected to adversely affect any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts to consummate capacity as such, (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Sections 1.01(c) or 1.01(d) or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Article 8.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses Company shall (C)(1x) or have timely provided to Parent and Merger Sub all information required to be provided by it pursuant to Section 2.1(g) and (C)(4y) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)complied with its obligations under Section 2.2, as promptly as practicable after the date hereof (but in no event more than ten (10) Business Days thereafter), Acquisition and substantially concurrently with the filing by the Company of the Schedule 14D-9, Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any Offer, upon the terms and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9conditions set forth herein. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders as and contains to the extent required by United States federal securities Laws and shall contain the terms and conditions set forth in this Agreement and Agreement, including in Annex A. Each The obligation of Merger Sub to, and of Parent to cause Merger Sub to, irrevocably accept for payment and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject pay for any and all Company Shares validly tendered and not validly withdrawn pursuant to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, as of immediately prior to the expiration of the OfferExpiration Time, there be validly tendered and not validly withdrawn in accordance with the terms of the Offer, and “received” by the “depository” for the Offer (as such terms are defined in Section 251(h) of the DGCL), a number of Company Shares that, together with the Company Shares then owned by Parent Parent, Merger Sub and Acquisition Sub their respective Affiliates (if any) (excluding shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by the “depository” for the Offer, as such terms are defined by Section 251(h)(6) of the DGCL), represents at least a majority one (1) Company Share more than fifty percent (50%) of all then the total number of then-outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option)Shares; and
(ii) the other conditions set forth in Annex A.A (as they may be amended in accordance with this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Vector Group LTD)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all satisfaction of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedMinimum Condition, the Termination Condition and the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent, Payor and Purchaser shall not (A) decrease the Closing Amount or amend the terms of the CVR or the CVR Agreement, (B) change the form of consideration payable in the Offer, (C) Table of Contents decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clause (e) or (g) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts to consummate capacity as such, (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Sections 1.1(c) or 1.1(d) or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated Purchaser’s obligations to accept for payment and pay for any Shares tendered pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, are subject to the terms and the satisfaction or waiver of the conditions hereof set forth in Section 15—“Conditions to the Offer.” Salix and thereof. The Purchaser expressly reserve the right to waive any condition to the Offer, to increase the Offer shall be subject only to:
Price or to make any other changes in the terms and conditions of the Offer; provided that, unless previously approved by Santarus in writing, Salix and Purchaser will not: (i) decrease the condition (Offer Price or change the “Minimum Condition”) that, prior to the expiration form of consideration payable in the Offer, there (ii) decrease the number of Shares subject Table of Contents to or sought to be validly tendered and not withdrawn purchased in accordance with the terms of Offer, (iii) impose any additional conditions on the Offer a number of Company Shares thator amend any condition to the Offer, together with (iv) waive or amend the Company Shares then owned by Parent and Acquisition Sub Minimum Condition, (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90v) days following the then scheduled expiration amend any other term of the Offer in accordance with a manner that is materially adverse to the terms stockholders of Santarus or (vi) extend or otherwise change the Expiration Date except as required or permitted by the Merger Agreement. Extensions of the Offer. The Merger Agreement provides that: • if on the then-effective Expiration Date, any of the conditions to the Offer have not been satisfied or waived, Purchaser must extend the Offer for successive extension periods of not more than 10 business days each, or for such longer period as Salix, Purchaser and Santarus may agree, in order to permit the satisfaction of the conditions thereof to the Offer; provided that if the sole then-unsatisfied condition to the Offer is the Minimum Condition, the maximum aggregate number of days that Purchaser will extend the Offer is 40 business days; provided, further that Purchaser will not, without Santarus’ prior written consent, extend the Offer if all conditions to the Offer have been satisfied or waived; • Purchaser must extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer or necessary to resolve any comments of the SEC or its staff applicable to the Offer; provided that, in each case, Purchaser will not be required to, and without Santarus’ prior written consent will not, extend the Offer beyond the Outside Date; and • Purchaser has the right to extend the Offer from time to time for, in each instance, successive extension periods of not more than 10 business days (other than but not to exceed 20 business days in the Topaggregate, unless Salix, Purchaser and Santarus agree otherwise) if, on the then-Up Option); and
effective Expiration Date, the Marketing Period (iias defined below) the other conditions set forth in Annex A.has not been completed.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)IX, as promptly as practicable after the date hereof (but in no event more than ten fifteen (15) Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the shares of Company Shares Common Stock at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of shares of Company Shares Common Stock that, together with the shares of Company Shares Common Stock then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding shares of Company Shares on a fully diluted basisCommon Stock and the shares of Company Common Stock that the Company would be required to issue upon conversion, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion settlement or exercise of all then outstanding options, warrantsbenefit plans, obligations or securities convertible or exchangeable securities and similar rights that are theninto such shares, or other rights to acquire or be issued such shares (including all then scheduled outstanding Company Options and Company Restricted Stock Units), for which the Company has received notices of exercise or conversion prior to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in accordance with Section 251(h) of the terms and conditions thereof (other than DGCL, by the Top-Up Optiondepositary for the Offer pursuant to such procedures); and
(ii) the other conditions set forth in Annex A.
Appears in 1 contract
Samples: Merger Agreement (E2open Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any Shares validly tendered and not have been terminated validly withdrawn pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, are subject to the terms and conditions of Section 2.1(cthis Agreement, including the satisfaction of the Minimum Tender Condition and the satisfaction or waiver of the conditions set forth in Exhibit B (the Minimum Tender Condition and the other conditions set forth in Exhibit B are referred to collectively as the “Offer Conditions”), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares that contains the terms set forth in this Agreement, the Minimum Tender Condition and the other Offer Conditions. Merger Sub expressly reserves the right to (i) increase the “Offer to Purchase”Price, (ii) that is disseminated to all of the Company Stockholders and contains waive any Offer Condition or (iii) make any other changes in the terms and conditions set forth of the Offer; provided, however, that notwithstanding anything to the contrary in this Agreement and in Annex A. Each Agreement, without the prior written consent of the Company, neither Parent and Acquisition nor Merger Sub shall use its reasonable best efforts (A) reduce the Offer Price, (B) change or waive the Minimum Tender Condition, (C) impose conditions or requirements to consummate the Offer in addition to the Offer Conditions, (D) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement, (E) change the form of consideration payable in the Offer, subject (F) decrease the maximum number of Shares sought to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of purchased in the Offer, there be validly tendered and not withdrawn in accordance with or (G) otherwise amend or modify any of the Offer Conditions or the other terms of the Offer in a number manner that adversely affects any holder of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub in its capacity as such. The Offer may not be withdrawn prior to its scheduled expiration (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that as such expiration may be issued upon the vesting, conversion extended or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer re-extended in accordance with the terms and conditions thereof (other than the Top-Up Optionthis Agreement); and
(ii) the other conditions set forth , unless this Agreement is terminated in Annex A.accordance with Section 8.1
Appears in 1 contract
Samples: Merger Agreement (Tubemogul Inc)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all satisfaction of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedMinimum Condition, the Termination Condition and the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance so long as such changes are consistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, (1) Parent and Purchaser shall not amend, modify or waive the Minimum Condition and (2) without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer a Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Company Shares thatsought to be purchased in the Offer, together with (D) impose conditions or requirements to the Company Shares then owned by Parent and Acquisition Sub Offer in addition to the Offer Conditions, (if any)E) amend, represents at least a majority modify or waive the Termination Condition or the condition set forth in clause (f) of all then outstanding Company Shares on a fully diluted basisAnnex I, assuming (F) otherwise amend or modify any of the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration other terms of the Offer in accordance with the terms and conditions thereof a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Shares (other than Parent and its Affiliates) in its capacity as such, (G) terminate the Top-Up Option); and
Offer or accelerate, extend or otherwise change the Expiration Date, in each case, except as provided in Section 1.1(c) or 1.1(d) or (iiH) provide any “subsequent offering period” (or any extension thereof) within the other conditions set forth meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer may not be withdrawn prior to the Expiration Date (or any rescheduled Expiration Date) of the Offer, unless this Agreement is terminated in Annex A.accordance with Section 8.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Akcea Therapeutics, Inc.)
Terms and Conditions of the Offer. Provided (a) The obligation of Purchaser to accept for payment any Shares tendered shall be subject to the satisfaction of only those conditions set forth in ANNEX I hereto and the obligation of the Company to accept for payment any Shares tendered shall be subject to the satisfaction of only those conditions set forth in ANNEX II hereto.
(b) Without the prior written consent of the Company, Purchaser will not, and Parent will cause Purchaser not to, (i) decrease or change the form of the Per Share Amount, (ii) decrease the number of Shares sought in the Purchaser Offer, (iii) amend or waive the Minimum Condition (as defined in Annex I hereto), or impose conditions other than the conditions set forth in Annex I on the Offer, or (iv) amend any term of the Purchaser Offer in any manner materially adverse to stockholders of the Company; PROVIDED, HOWEVER, that subject to applicable legal requirements, Parent may cause Purchaser to waive the conditions set forth in Annex I, other than the Minimum Condition and the conditions set forth in paragraph (c) and (d) of Annex I, in Parent's sole discretion. Assuming the prior satisfaction or waiver of the conditions set forth in Annex I, Parent will cause Purchaser to accept for payment, and pay for, in accordance with the terms of the Purchaser Offer, Shares validly tendered and not withdrawn pursuant to the Purchaser Offer as soon as practicable after the Initial Expiration Date (as defined below) or any extension thereof and in any subsequent offering period of the Purchaser Offer, up to a number of Shares equal to the Purchaser Share Number, in the order of priority set forth in Section 1.01(b).
(c) Without the prior written consent of Parent, the Company will not (i) decrease or change the form of the Per Share Amount, (ii) decrease the number of Shares sought in the Company Offer, (iii) impose conditions other than the conditions set forth in Annex II on the Company Offer, or (iv) amend any term of the Company Offer in any manner materially adverse to Parent or Purchaser; PROVIDED, HOWEVER, that subject to applicable legal requirements, the Company may waive any condition set forth in Annex II other than the conditions set forth in paragraphs (c) and (d) of Annex II in the Company's sole discretion. Assuming the prior satisfaction or waiver of the conditions in Annex II, the Company will accept for payment, and pay for, in accordance with the terms of the Company Offer, Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the Initial Expiration Date or any extension thereof and in any subsequent offering period of the Offer, up to a number of Shares equal to the Company Share Number, in the order of priority set forth in Section 1.01(b). All Shares purchased by the Company pursuant to the Company Offer shall, at the election of the Company, be immediately cancelled or returned to the treasury of the Company.
(d) The Offer shall initially expire on the later to occur of (x) twenty (20) business days after the date of its commencement and (y) January 28, 2000 (the "INITIAL EXPIRATION DATE"), unless this Agreement is terminated in accordance with SECTION 7.01 hereof, in which case the Offer (whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination. Purchaser and the Company 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 described in ANNEX I and ANNEX II hereto shall not have been terminated pursuant satisfied or earlier waived. Notwithstanding the foregoing, but subject in all events to Article X and that none Section 7.01, Purchaser may, without the consent of the events or circumstances set forth in clauses Company, extend the Offer at any time, and from time to time, (C)(1i) or if at the then scheduled expiration date of the Offer any of the conditions to the obligations of Purchaser and the Company to accept Shares for payment (C)(4other than the Minimum Condition, as to which this clause does not apply) of Annex A shall have occurred and be existing (and shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; (ii) if all conditions to the obligations of Purchaser and the Company to accept Shares for payment (other than the Minimum Condition) shall have been satisfied or waived, the Minimum Condition has not been satisfied but the number of Shares tendered, together with the Shares otherwise owned by BYOWC, Parent or Purchaser, is greater than 40% of the Shares outstanding, for an aggregate period of not more than fifteen (15) business days (for all such extensions); (iii) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or its staff applicable to the Offer; or (iv) if all conditions to the obligations of Purchaser and the Company to accept for payment and pay for Shares are satisfied or waived but the number of Shares tendered, together with the Shares otherwise owned by ParentBYOWC, Parent or Purchaser, is less than 90% of the then outstanding number of Shares (and after giving effect to the reduction of outstanding Shares resulting from the purchase of Shares by the Company pursuant to the Company Offer), as promptly as practicable after the date hereof (but in no event for an aggregate period of not more than ten Business Days thereaftertwenty (20) business days (for all such extensions) beyond the latest expiration date that would be permitted under clauses (i), Acquisition Sub (ii) or (iii) of this sentence, and in the case of any extension pursuant to this clause (iv) Purchaser and/or the Company, as the case may be, shall (accept for payment all Shares validly tendered pursuant to the Offer as of the most recently expired expiration date in accordance with the rules and Parent shall cause Acquisition Sub to) commence (within regulations of the meaning of SEC, including Rule 14d-2 14d-11 promulgated under the Securities Exchange Act.
(e) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”"OFFER TO PURCHASE") that is disseminated to all of having only the Company Stockholders and contains the terms and conditions set forth in this Agreement ANNEX I and ANNEX II hereto. BYOWC, Parent, the Company and Purchaser shall cooperate in Annex A. Each good faith in the timely preparation of Parent the Offer to Purchase and Acquisition Sub the other Offer Documents (as defined below).
(f) As soon as practicable on the date the Offer is commenced, (x) Purchaser shall use its reasonable best efforts file with the SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "SCHEDULE 14D-1") and (y) the Company Shall file an Issuer Tender Offer Statement on Schedule 13E-4 (the "SCHEDULE 13E-4") and a Solicitation/Recommendation Statement on Schedule 14D-9 (the "SCHEDULE 14D-9") with respect to consummate the Offer, subject each of which will comply in all material respects with the provisions of, and satisfy in all material respects the requirements of, such Schedule 14D-1, Schedule 13E-4 and Schedule 14D-9, respectively, and all applicable federal securities laws and, in the case of the Schedule 14D-1 and Schedule 13E-4, will contain as an exhibit or incorporate by reference the Offer to Purchase and forms of the related letter of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in connection with the Offer and related transactions, are referred to collectively herein as the "OFFER DOCUMENTS"). Each of Parent, Purchaser and the Company agrees promptly to correct any information provided by it for use in the Schedule 14D-1, the Schedule 13E-4, the Schedule 14D-9 or the Offer Documents if and to the terms extent that such information shall have become false or misleading in any material respect and conditions to supplement the information provided by it specifically for use in the Schedule 14D-1, the Schedule 13E-4, the Schedule 14D-9 or the other Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Parent, Purchaser and the Company, as applicable, shall take all steps necessary to cause the (x) Schedule 14D-1, the Schedule 13E-4 and the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and (y) the Offer Documents and the Schedule 14D-9, as so corrected or supplemented, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.
(g) The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-1 before it is filed with the SEC, and Purchaser shall consider any such comments in good faith. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 13E-4 and Schedule 14D-9 before it is filed with the SEC, and the Company shall consider any such comments in good faith.
(h) The Per Share Amount shall be appropriately adjusted to reflect fully the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Shares), distribution, exercise or exchange of the Rights (as defined in Section 4.02(d)) or such Rights becoming exercisable, reorganization, recapitalization, split up, combination or exchange of shares or other like event with respect to the Shares occurring after the date hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms consummation of the Offer a number of Company Shares thator the Merger, together with as the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that case may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.be.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to (and of Parent to cause Purchaser to) accept for payment, and (prior to the Offer Acceptance Time) pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X and that none the Offer shall be subject to the satisfaction or waiver (to the extent permitted under applicable Legal Requirements) of the events or circumstances conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the “Offer Conditions”), as promptly as practicable after the date hereof (but in and no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9other conditions. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all (i) increase the amount of cash constituting the Company Stockholders Offer Price, (ii) waive any Offer Condition (to the extent permitted under applicable Legal Requirements) and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer (provided that nothing herein shall limit the ability of Parent and Purchaser to increase the cash consideration payable in the Offer), (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clause (e) or (g) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts to consummate capacity as such, (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Sections 1.01(c) or 1.01(d), or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Article 8.
Appears in 1 contract
Terms and Conditions of the Offer. Provided Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated pursuant to Article X IX and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A Company shall have occurred and be existing (and shall not have been waived by Parent)complied with its obligations under Section 1.2, as promptly as practicable after the date hereof (but in no event more than ten Business Days twenty (20) business days thereafter), Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer; provided that, without limiting the foregoing, Parent shall (and Parent shall cause Purchaser to) use reasonable best efforts to commence the Offer on or prior to purchase any April 9, 2018. In the Offer, each share of Company Common Stock accepted by Purchaser in accordance with the terms and all subject to the conditions of the Company Shares at Offer shall be exchanged for the right to receive (i) $36.00 in cash, without interest (the “Cash Consideration”), and (ii) 0.0711 of a price share of common stock, par value $0.001 per Company Shareshare, of Parent (“Parent Common Stock”), without interest (the “Stock Consideration” and, together with the Cash Consideration, the “Offer Consideration”), subject to the terms other provisions of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. this Article I. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all holders of Company Common Stock pursuant to the Company Stockholders Exchange Act and contains the terms and conditions set forth in this Agreement and in (including Annex A. C). Each of Parent and Acquisition Sub Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof(including Annex C). The obligation of Purchaser to accept for exchange (and the obligation of Parent to cause Purchaser to accept for exchange) shares of Company Common Stock validly tendered (and not validly withdrawn) pursuant to the Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be have been validly tendered and not validly withdrawn in accordance with the terms of the Offer a number of shares of Company Shares Common Stock that, upon the consummation of the Offer (for the avoidance of doubt, assuming that shares of Class B Common Stock validly tendered (and not validly withdrawn) will convert into shares of Class A Common Stock upon the consummation of the Offer), together with the shares of Company Shares Common Stock then owned by Parent and Acquisition Sub Purchaser (if any) (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures), represents would represent at least a majority of all then the aggregate voting power of the shares of Company Common Stock outstanding Company Shares on a fully diluted basis, assuming immediately after the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration consummation of the Offer in accordance with (the terms and conditions thereof (other than the Top-Up Option“Minimum Condition”); and
(ii) the other conditions set forth in Annex A.C.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent), as promptly as practicable after the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, are subject to the terms and conditions set forth in this Agreement, including the satisfaction of Section 2.1(c), equal to the Offer Price, provided that Parent Minimum Condition and Acquisition Sub shall not be required to commence, the satisfaction or cause to be commencedwaiver of the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser and Parent expressly reserve the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions set forth of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser and Parent shall not (A) decrease the Offer Price, (B) change the form of consideration payable in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the terms and conditions hereof and thereofOffer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Shares in their capacity as such, (F) change or waive the Minimum Condition, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement, or (H) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Terms and Conditions of the Offer. Provided Subject to the terms and conditions of this Agreement and provided that this Agreement shall has not have been terminated pursuant to in accordance with Article X VIII and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A Company shall have occurred complied with its obligations under Section 1.2 and be existing (and shall not have been waived by Parent)Section 1.3 hereof, as promptly as practicable after the date hereof (but in no event more later than ten 5:00 p.m., New York City time, on the twentieth (20th) Business Days thereafterDay following the date hereof), Acquisition Sub shall (Purchaser shall, and Parent shall cause Acquisition Sub Purchaser to) , commence (the Offer within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c”), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means obligations of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders Purchaser to, and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent to cause Purchaser to, accept for payment, and Acquisition Sub shall use its reasonable best efforts to consummate the Offerpay for, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration any shares of the Offer, there be Company Common Stock validly tendered and not properly withdrawn in accordance with pursuant to the terms Offer are subject only to the satisfaction or waiver of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.A (the “Offer Conditions”). In the Offer, each share of Company Common Stock accepted by Purchaser shall be exchanged for the right to receive, at the election of Parent (such election to be made by delivery of written notice by Purchaser to the Company no later than 5:00 p.m., New York City time, on the tenth (10th) business day prior to the Expiration Date, which notice shall specify the amount of Stock Consideration and Cash Consideration elected to be utilized by Purchaser), either: (i)(x) $11.40 in cash (the “Minimum Cash Consideration”) and (y) a number of shares of Parent Common Stock equal to (A) $57.00 minus the Minimum Cash Consideration, divided by (B) the Parent Trading Price (the “Maximum Stock Consideration”), or (ii)(x) an amount in cash greater than the Minimum Cash Consideration and not to exceed $27.93 (such amount elected by Parent, the “Alternative Cash Consideration,” and each of the Alternative Cash Consideration and the Minimum Cash Consideration, as applicable, being referred to herein as the “Cash Consideration”) and (y) a number of shares of Parent Common Stock equal to (A) $57.00 minus the Alternative Cash Consideration, divided by (B) the Parent Trading Price (the “Alternative Stock Consideration” and each of the Alternative Stock Consideration and the Maximum Stock Consideration, as applicable, being referred to herein as the “Stock Consideration”, and the applicable Stock Consideration together with the applicable Cash Consideration, the “Transaction Consideration”).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Surgical Care Affiliates, Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Merger Sub to (and of Parent to cause Merger Sub to) accept for payment, and pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X and that none the Offer shall be subject to the satisfaction or waiver (to the extent permitted under applicable Laws) of the events or circumstances conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the "Offer Conditions"), as promptly as practicable after the date hereof (but in and no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9other conditions. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “"Offer to Purchase”") that is disseminated contains the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the right to all of (i) waive any Offer Condition (to the Company Stockholders extent permitted under applicable Laws) and contains (ii) make any other changes in the terms and conditions set forth of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement Agreement, without the prior written consent of the Company, Parent and Merger Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in Annex A. Each the Offer (provided that nothing herein shall limit the ability of Parent and Acquisition Merger Sub shall use its reasonable best efforts to consummate increase the cash consideration payable in the Offer), (C) decrease the maximum number of Shares sought to be purchased in the Offer, subject (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, (F) otherwise amend or modify any of the other terms and conditions hereof and of the Offer in a manner that adversely affects any holder of Shares in its capacity as such, (G) terminate the Offer or accelerate, extend or otherwise change the Expiration Time, in each case, except as provided in Section 1.1(c) or 1.1(d), or (H) provide any "subsequent offering period" (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Time (or any rescheduled Expiration Time) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 10.
Appears in 1 contract
Samples: Merger Agreement (Cartesian, Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any Shares validly tendered pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all satisfaction of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedMinimum Condition, the Termination Condition and the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Merger Sub expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written Consent of the Company, Parent and Merger Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clause (e) or (g) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects, or would reasonably be expected to adversely affect, any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts to consummate capacity as such, (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Sections 1.1(c) or 1.1(d) or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)IX, as promptly as practicable after the date hereof as mutually determined by the parties (but in no event more later than ten Business Days thereafterMay 26, 2015), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the holders of Company Stockholders Shares and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only toto the following conditions:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Brookfield Capital Partners Ltd. and its controlled Affiliates, including Parent and Acquisition Sub (if any), plus all Underlying Common Shares (if any), represents at least a majority thirty percent (30%) of all then outstanding Company Shares, plus the Underlying Common Shares on a fully diluted basis, assuming (if any) (the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option“Minimum Condition”); and;
(ii) CFIUS Clearance, unless Parent and the Company reasonably determine that CFIUS Clearance is unnecessary because CFIUS Clearance was obtained for a transaction covered by the Investment Agreement that CFIUS determined to be subject to Exon-Xxxxxx;
(iii) Satisfaction of the ITAR Pre-Notification Requirement;
(iv) the other conditions set forth in Annex A.A; and
(v) only in the event of a Partial Acquisition, the Company and Parent shall have delivered, or cause to be delivered, to each other a duly executed Amended and Restated Stockholder Rights Agreement, substantially in the form attached hereto as Exhibit A (the “Amended and Restated Stockholder Rights Agreement”).
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)IX, as promptly as practicable after the date hereof (but in no event more than ten Business Days thirteen (13) business days thereafter), Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Shares. In the Offer, each Company Share, Share accepted by Purchaser in accordance with the terms and subject to the terms conditions of Section 2.1(cthe Offer and in compliance with applicable Law shall be exchanged for the right to receive, at the election of the holder: (i) $$261.25 in cash (the “Cash Consideration”), (ii) a number of shares of Parent Common Stock equal to (x) $261.25 divided by (y) the Offer Price, provided that Parent and Acquisition Sub shall not be required to commenceTrading Price (the “Stock Consideration”), or cause (iii) $152.25 in cash and a number of shares of Parent Common Stock equal to be commenced(x) $109.00 divided by (y) the Parent Trading Price (the “Mixed Consideration”), in each case subject to proration as set forth in Section 1.1(c) and the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. other provisions of this Article I. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the holders of Company Stockholders Shares and contains the terms and conditions set forth in this Agreement and in Annex A. B. Each of Parent and Acquisition Sub Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub Purchaser (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all (excluding Company Shares tendered pursuant to guaranteed delivery procedures that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90have not yet been “received,” as such term is defined in Section 251(h) days following the then scheduled expiration of the DGCL, by the depositary for the Offer in accordance with the terms and conditions thereof (other than the Top-Up Optionpursuant to such procedures); and
(ii) the other conditions set forth in Annex A.B.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)VIII, as promptly as practicable after the date hereof (but in no event more than ten eleven (11) Business Days thereafterafter the date of the initial public announcement of this Agreement), Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the outstanding Company Shares at a price per Company Share, subject to the terms of Section 2.1(c)2.11, equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Agreement, including Annex A. Each of Parent and Acquisition Merger Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for any Company Shares tendered pursuant to the Offer shall be subject only toto the satisfaction or waiver (in accordance with the terms of this Agreement) of:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the OfferExpiration Time, there be validly tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any)Merger Sub, represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all (not including Company Shares that may be issued upon tendered pursuant to guaranteed delivery procedures for which the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Optionunderlying Company Shares have not yet been delivered); and
(ii) the other conditions set forth in clause (B) and clause (C) of Annex A.A, as such conditions may be modified in accordance with this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Relypsa Inc)
Terms and Conditions of the Offer. Provided that Subject to the terms and conditions of this Agreement shall not have been terminated pursuant to Article X and that none Agreement, including the prior satisfaction of the events Minimum Condition and the satisfaction or circumstances waiver of the other conditions set forth in clauses Annex I (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parentcollectively, the “Offer Conditions”), as promptly soon as practicable after the date hereof (but in no event more than ten Business Days thereafter)Expiration Date, Acquisition Sub Purchaser shall (and Parent shall cause Acquisition Sub Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) consummate the Offer to purchase any in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all of the Company Shares at a price per Company Share, subject validly tendered and not properly withdrawn pursuant to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Offer. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and the Offer Conditions. Purchaser shall have the right to (i) increase the Offer Price, (ii) waive any Offer Condition and (iii) make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in Annex A. Each the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions or any other terms or conditions of this Agreement in a manner that adversely affects, or could reasonably be expected to adversely affect, any holder of Shares or that could, individually or in the aggregate, reasonably be expected to prevent or delay the consummation of the Offer or prevent, delay or impair the ability of Parent and Acquisition Sub shall use its reasonable best efforts or Purchaser to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
Merger or the other Transactions, (iF) change or waive the condition Minimum Condition or the Regulatory Condition, (the “Minimum Condition”G) that, prior to the expiration of the Offer, there be validly tendered and not withdrawn in accordance with the terms of terminate the Offer or accelerate, extend or otherwise change the Expiration Date in a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (manner other than as required or permitted by this Agreement or (H) provide any “subsequent offering period” within the Top-Up Option); and
(ii) meaning of Rule 14d-11 promulgated under the other conditions set forth in Annex A.Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (RayzeBio, Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall The obligations of Purchaser to accept for payment, and pay for, any Shares validly tendered (and not have been terminated validly withdrawn) pursuant to Article X the Offer are subject only to the terms and that none of the events or circumstances conditions set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)this Agreement, as promptly as practicable after including the date hereof (but in no event more than ten Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all satisfaction of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commencedMinimum Condition, the Termination Condition and the other conditions set forth in Annex I (collectively, the “Offer prior to the date on which the Company is prepared to file the Schedule 14D-9Conditions”). The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated contains the terms set forth in this Agreement, the Minimum Condition, the Termination Condition and the other Offer Conditions. Purchaser expressly reserves the right to all of (i) increase the Company Stockholders Offer Price, (ii) waive any Offer Condition and contains (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Parent and Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, Termination Condition or the conditions set forth in this Agreement and clause (e) or (g) of Annex I, (F) otherwise amend or modify any of the other terms of the Offer in Annex A. Each a manner that adversely affects, or reasonably could adversely affect, any holder of Parent and Acquisition Sub shall use Shares in its reasonable best efforts to consummate capacity as such, (G) terminate the OfferOffer or accelerate, subject to extend or otherwise change the terms and conditions hereof and Expiration Date, in each case, except as provided in Section 1.1(c) or 1.1(d) or (H) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 under the Exchange Act. The Offer shall may not be subject only to:
(i) the condition (the “Minimum Condition”) that, withdrawn prior to the expiration Expiration Date (or any rescheduled Expiration Date) of the Offer, there be validly tendered and not withdrawn unless this Agreement is terminated in accordance with the terms of the Offer a number of Company Shares that, together with the Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding Company Shares on a fully diluted basis, assuming the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option); and
(ii) the other conditions set forth in Annex A.Section 8.
Appears in 1 contract
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X IX and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A Company shall have occurred provided to Parent and Merger Sub all information reasonably required to be existing (and shall not have been waived provided by Parentit pursuant to Section 2.1(g), as promptly as practicable after the date hereof (but in no event more than ten (10) Business Days thereafter), Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any upon the terms and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9conditions set forth herein. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders as and contains to the extent required by United States federal securities Laws and shall contain the terms and conditions set forth in this Agreement and Agreement, including in Annex A. Each of Merger Sub shall, and Parent and Acquisition shall cause Merger Sub shall to, use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, irrevocably accept for payment and pay for any Company Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, as of immediately prior to the expiration of the OfferExpiration Time, there be validly tendered and not validly withdrawn in accordance with the terms of the Offer, and “received” by the “depository” for the Offer (as such terms are defined in Section 251(h) of the DGCL), a number of Company Shares that, together with the Company Shares then owned by Parent Parent, Merger Sub and Acquisition Sub any of their direct or indirect wholly owned Subsidiaries (if anyexcluding shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by the “depository” for the Offer (as such terms are defined in Section 251(h) of the DGCL)), represents at least a majority one more Company Share than 50% of all then the total number of outstanding Company Shares on a fully diluted basis, assuming as of immediately prior to the issuance of all Company Shares that may be issued upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights that are then, or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration of the Offer in accordance with the terms and conditions thereof (other than the Top-Up Option)Expiration Time; and
(ii) the other conditions set forth in Annex A.A (as they may be amended in accordance with this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Icosavax, Inc.)
Terms and Conditions of the Offer. Provided that this Agreement shall not have been terminated pursuant to Article X and that none of the events or circumstances set forth in clauses (C)(1) or (C)(4) of Annex A shall have occurred and be existing (and shall not have been waived by Parent)X, as promptly as practicable after the date hereof (but in no event more than ten (10) Business Days thereafter), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares at a price per Company Share, subject to the terms of Section 2.1(c), equal to the Offer Price, provided that Parent and Acquisition Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The Offer shall be made by means of an offer to purchase all outstanding Company Shares (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and contains the terms and conditions set forth in this Agreement and in Annex A. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to:
(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly tendered (not including Company Shares tendered pursuant to procedures for guaranteed delivery) and not withdrawn in accordance with the terms of the Offer a that number of Company Shares thatwhich, together with the number of Company Shares Shares, if any, then owned beneficially by Parent, any wholly-owned subsidiary of Parent and or Acquisition Sub (if any)Sub, represents constitutes at least a majority of all the total number of then outstanding Company Shares on a fully diluted basisbasis (which shall mean, assuming as of any time, the issuance number of all Company Shares that may outstanding, together with all Shares (if any) which the Company would be issued upon the vestingrequired to issue pursuant to any then outstanding warrants, conversion or exercise of all outstanding options, warrantsrestricted stock units, securities convertible or exchangeable into Shares or other binding obligations, but only to the extent then so exercisable, convertible or exchangeable securities and similar rights that are thenor exercisable, convertible or then scheduled to become, exercisable within ninety (90) days following the then scheduled expiration exchangeable as a result of the Offer in accordance with consummation of the terms and conditions thereof (other than the Top-Up OptionOffer); and
(ii) the other conditions set forth in Annex A.
Appears in 1 contract
Samples: Merger Agreement (Emc Corp)
